Little v Police - [2017] SASCFC 8

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
LITTLE v POLICE
[2017] SASCFC 8
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Lovell)
16 February 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
Appeal against conviction. The appellant was found guilty by a Magistrate of driving without due care. The offence was aggravated by death having resulted from the offence. An appeal to a single Judge of this Court was dismissed but permission was granted to appeal to the Full Court. Where both the Magistrate and the single Judge found that the appellant drove without due care by entering the intersection at a speed which was too fast. Where both the Magistrate and the single Judge found that the appellant's driving was a substantial cause of the collision leading to death.
The appellant takes six grounds of appeal. Whether the Judge erred in his approach to proof. Whether the Judge erred in his use of evidence of the practice of most drivers on that road. Whether the Judge failed to undertake an independent assessment of the evidence. Whether the Judge erred in arriving at his own meaning of the word "understeering". Whether the Judge erred in his approach to causation.
Held per Vanstone J (Kourakis CJ and Lovell J agreeing): None of the grounds of appeal have been substantiated. Appeal dismissed.
Burns v The Queen (2012) 246 CLR 334; Royall v The Queen (1991) 172 CLR 378, considered.

LITTLE v POLICE
[2017] SASCFC 8
Full Court: Kourakis CJ, Vanstone and Lovell JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Vanstone J.
VANSTONE J: Jack James Little was found guilty by a Magistrate of driving without due care. The offence was aggravated by death having resulted from the offence.
An appeal against that conviction was heard by a single Judge of this Court. That appeal was dismissed, but the Judge granted permission to appeal to the Full Court. The grounds raise the Judge’s approach to the appeal and various factual findings made by him.
For the reasons which follow, I consider the appeal should be dismissed.
Background
The collision occurred on 7 May 2013 near to the junction of Pudneys Road and Glynns Road, near Kongorong, which lies south-east of Carpenter Rocks. The road surface at the collision site comprised white crushed limestone. The road surface was 4.8 metres wide with no line markings. At the time of the collision it was slightly damp. A vehicle is said to be about 1.9 metres in width.
Prior to the collision, the deceased, Mr Von Duve, was driving in his Mazda four-wheel drive vehicle along Pudneys Road in a north-west direction. The appellant was travelling south along Glynns Road in his Nissan four‑wheel drive utility vehicle. Each driver was alone. The two roads met in what could be described as a Y-junction, with Pudneys Road forming the left side and lower part of the “Y”, and Glynns Road the right arm of it. Both roads were governed by speed limits of 100 kilometres per hour.
Facing the appellant as he approached the junction was a sign warning of a T-junction ahead. Therefore, the appellant was required to give way to all traffic on Pudneys Road. Facing the deceased as he approached the junction was a sign warning of a road crossing ahead.
Evidence of the way in which the collision occurred came from the appellant’s interview with police given on the day following the collision, as well as his evidence at trial, and from expert accident reconstruction evidence given by Sergeant Cox for the prosecution, and Mr Graham England, for the defence. The Magistrate found that the appellant’s interview and evidence were “largely consistent” and that the road markings found at the scene were consistent with the appellant’s account of the incident. He based his findings “substantially” on the defendant’s account.
The appellant told police that, as he headed south on Glynns Road, he was travelling at 80 kilometres per hour, and then, “coming into the corner [he] started slowing down”. Asked about his speed going into the corner, he said:
I’d say I estimate 60 to 50.
The appellant said that he was already turning when he saw the Mazda. He had not seen it any earlier because of the vegetation to his left. He was “committed to turning” by the time he saw it.He said:
When I first saw him it felt like we were travelling at similar speeds. ... Like when I first saw him and then I, I was just basically trying to get out of it.
He said:
[I]t didn’t feel as though his car slowed down or anything but it all happened so fast so I don’t, I wouldn’t ...
There was slight disagreement between Sergeant Cox and Mr England about the location of the point of impact. Mr England placed it at two metres from the western side of Pudneys Road, that is, on the deceased’s side of the road. Sergeant Cox put it still further onto the deceased’s side. On this point the Magistrate preferred Mr England’s conclusion, but either way, the point of impact was on the Mazda’s side of the (theoretical) centreline.
The Magistrate made the following findings. He found that the appellant, having slowed down, approached the junction at “between 50 and 60 km/h”. He checked the road to the right, which was clear. Vegetation to his left obstructed the view south along Pudneys Road. He could not see around the corner until he passed the vegetation. The Magistrate said at [80]:
As he was committed to taking the bend, at about 50 to 60 km/h, he saw the red Mazda. He tried to turn more to the left, perceiving the possibility of a collision as the Mazda appeared to be towards the middle of the road and seemed to maintain that position. In doing so he did not seem to be moving away from the Mazda and as he was as far to the left of the road as he could be, he applied his brakes, resulting in his vehicle skidding straight and sliding, then impacting with the red Mazda 4-wheel drive driven by Mr Von Duve.
There was some evidence suggesting that the deceased was using his mobile phone shortly before the collision. The mobile phone was found in the footwell of the passenger’s seat of the Mazda and at about the time of the collision a call had been made on it. On that basis of that evidence, the Magistrate said at [88]:
[I]t cannot be excluded as a reasonable possibility that [the deceased] was using the phone at or shortly before the point of impact.
The Magistrate found that the appellant’s practice, and that of other drivers using roads of this type, was to travel in such a way that his vehicle would be positioned towards the centre of the road, where the surface was in better condition, and to move to the left as required: [81]
The Mazda seemed to be travelling at about the same speed as his vehicle when he first saw it. The vehicles were both close to the middle of the road at the point of impact. It was Mr Little’s practice and the practice of other drivers on this type of road to travel more or less in the centre of the road where the surface was best, and move to the left to pass an oncoming vehicle or at a bend or intersection.
The Magistrate made no finding about the speed of the deceased’s vehicle as it approached the junction, except for his reference to the appellant’s perception of its speed and a reference to Sergeant Cox’s evidence that, had the vehicle been travelling at 140 kilometres per hour, she would have expected greater damage. I shall return to the relevance (if any) of the reference to 140 kilometres per hour.
The Magistrate concluded that, notwithstanding that the deceased might have been using his phone and might have had a slower reaction time as a result, and even though the only options available to the appellant when faced with the emergency were to move more to the left or brake, the speed at which the appellant approached the junction was: [91]
… not consistent with his obligation as a reasonable driver to drive with a lookout that not only sees immediate or immediately developing danger, but looks well ahead and searches for potential danger.
The Magistrate continued at [92] and [93]:
Faced with a heavily obscured view to the left and having passed a T-junction advisory sign and driving on a damp, crushed limestone road the prudent, defensive driver looking ahead to the possibility of a vehicle travelling towards the centre of Pudneys Road (as the defendant and other drivers in the area to his knowledge did) would have approached the intersection at a considerably slower speed than Mr Little did so as to give sufficient time to react in such a way as to minimise the danger posed.
I am satisfied beyond reasonable doubt that in the circumstances I have described the defendant’s speed approaching the bend was excessive and contributed to the collision, resulting in Mr Von Duve’s death. In a very real sense, once he entered the intersection at that speed the die was cast in the event a vehicle was travelling as the red Mazda was.
The Judge upheld those findings. In respect of the central issue the Judge said at [42]:
More importantly, however, even accepting that the appellant was in control of his vehicle up to the point at which he commenced to skid, this again is not determinative of the key issue of whether the appellant was driving at a sufficiently slow speed to give him an appropriate opportunity to respond to the danger that might appear around the bend. It may well be that if no danger had presented itself, the appellant would have been able to maintain his control and line around the bend. But that is not the test. The relevant standard requires a level of defensiveness in the driver’s speed appropriate to the circumstances confronting the driver. In my view, the combination of circumstances relied upon by the Magistrate in this case (including the nature of the bend or intersection, the surface of the road, the obstructed view to the south and the dangers that might appear around the bend) supported a finding that the appellant was driving too quickly despite him maintaining control of his vehicle until the point he began to skid.
Grounds 3 and 5 – Approach to proof
These grounds were argued together and contain the central attack on the Judge’s dismissal of the appeal from the Magistrate. It is therefore convenient to deal first with them. They complain of the findings of both the Magistrate and the Judge to the effect that the appellant should have entered the junction at a lesser speed without stipulating what that speed was; that the finding of guilt amounted to requiring the appellant to enter the junction at a speed low enough to enable him to avoid collision with a motorist who was partly on his side of the road, and the failure to weigh that the appellant’s sudden braking was necessitated by the deceased’s conduct.
The appellant argues anew that the evidence showed that he was in control of his vehicle as he entered the junction. He would have completed the turn safely but for seeing the deceased’s Mazda in a position on the roadway where the appellant considered he had to do something to avoid collision. His choices were to move further to the left of his side of the carriageway or brake. It was his action of “slamming” on the brakes which led him to skid to the other side of the road. It is put that, but for the deceased’s vehicle being partly on the appellant’s side of the carriageway, there would have been no need to take evasive action and the appellant would have maintained control of his vehicle. It is said that the emergency faced by the appellant caused both by the deceased’s high speed and position on the road surface, was not one with which the reasonably prudent driver should be required to cope. It was argued that, as the Judge accepted, analysis of the situation facing the appellant had to allow that the deceased’s speed was up to 140 kilometres per hour when seen by the appellant.
It is further argued that there was no evidence before the Court that, had the appellant been travelling at a lesser speed when he entered the bend, he could have averted the emergency and prevented the collision. Indeed, there was every reason to believe that even at a lower speed, exactly the same event of braking, skidding and collision would have occurred.
Counsel argues that neither the Magistrate nor the Judge nominated a speed which would have been a safe speed. Neither put forward a numerical figure, and nor was there any basis for one in the evidence. It is put that, there being no evidence that a lesser speed would have materially reduced the chances of collision, to infer – as the single Judge did – from commonsense and experience that this was the position was to reverse the onus of proof. Reference was made to Burns v The Queen (2012) 246 CLR 334 and Royall v The Queen (1991) 172 CLR 378.
Before dealing with these arguments it is necessary to correct one matter. While the Judge was seemingly prepared to accept as a reasonable possibility that the deceased was travelling at 140 kilometres per hour, I do not consider that there was any evidential basis for such a possibility. (Nor did the Magistrate allow for such a possibility.) The contention to this effect, made by the appellant’s counsel, ostensibly arose from the evidence of Sergeant Cox. As part of her analysis of the collision, she set about attempting to estimate the “pre-skid” speeds of first, the appellant’s vehicle, and then, based on that, the speed of the deceased’s vehicle. That process involved a number of variables. First, it was necessary to determine a friction value for each vehicle travelling on the relevant road surface. For reasons which were no doubt good ones neither the crash scene nor the two vehicles were used for this purpose. Rather, a police car was used on another road surface said to be comparable. Then, adjustment had to be made for the fact that the actual road was on a slope. Also, Sergeant Cox relied on another officer’s description of the road conditions at the relevant time, which rendered the surface more slippery than usual.
Post impact speeds for both vehicles had to be calculated based on the distance travelled after impact (incorporating allowance for rotation) and the friction value of the surface. In terms of the formula utilised the officer treated this as an “inline collision”. She said that the applicable formula was considered to hold good for collisions where the angle at impact was no more than 10 degrees from a straight line. Here, she said the angle was more like 15 to 25 degrees. She decided to treat this as an inline collision in the absence of any more appropriate formula. She considered that allowance for that could be made by “ruling out” some of the results.
This method was said by Sergeant Cox to require knowledge of the pre‑impact speed for one of the vehicles. In the absence of other information the officer extrapolated from the appellant’s own estimate of his pre‑collision speed and put in values of 50 and 80 kilometres per hour at the start of the skid marks, so to arrive at a range of speeds. Taking those two values the witness calculated speed lost over the length of the Nissan’s skid marks. That was then incorporated into a calculation using the 50 and 80 kilometres per hour figures, as well as a range for the coefficient of friction, to give a range of speeds of the appellant, at impact, of 33 to 73 kilometres per hour.
That range was then used to calculate a range of impact speeds for the Mazda. Those arrived at were 83 to 140 kilometres per hour. However, that conclusion was then modified by the witness on account of three matters, as she did not consider that “the higher end of those two speed ranges was plausible”. She said first that at the higher speeds she would have expected more damage to both vehicles. Next, due to the roughness of the surface of Pudneys Road, she did not consider that travel at that speed was viable, and thirdly, she referred to the inapplicability of the formula she used.
Not surprisingly, the Magistrate made no finding based on this evidence. I do not consider that this evidence presented any basis for allowing as a reasonable possibility that the deceased was travelling at up to 140 kilometres per hour. The calculations made by the witness were based on a number of variables – some of them not measured accurately – the formula used was not suited to the task, and in my view the witness was not qualified to make allowances for the degree of error likely to be involved. The witness herself eschewed the range at least at its high end. The Magistrate was not bound by that range. Indeed, the Magistrate also had available to him the appellant’s own estimate of the deceased’s speed when first seen: which he thought was similar to his own. It is not suggested that it was necessary for the Court to arrive at a range of speed applicable to the deceased’s travel. The point I make is that there was no basis in the evidence for asserting that the deceased’s speed might have approached 140 kilometres per hour. With respect to the Judge, I disagree with his statement at [11] that the “evidence required that the Magistrate approach the matter on the basis that it was reasonably possible that the deceased was travelling at any speed up to about 140 km/h”.
That is a long preamble to make the point that both the Magistrate and the Judge correctly approached the question of whether the appellant was proved to be driving without due care by focusing, not on the precise risk which was presented to the appellant, but rather on the standard of care required by the reasonably prudent driver driving with a defensive outlook in the circumstances which pertained. Those circumstances comprehended the road conditions including slipperiness, the limited visibility to the appellant’s left and that, approaching a T-junction, the appellant was required to give way to all traffic: Judge’s reasons [36]-[42]. The Judge reasoned that the Magistrate was entitled to find that the speed at which the appellant approached the bend was too fast and amounted to driving without due care.
Contrary to the submission made both in this Court and before the Judge, that finding was not based on the appellant’s loss of control after responding to the emergency situation. It was expressly based on his manner of driving as he entered the junction.
The argument that the appellant was in control of his vehicle entering the junction begs the question of the standard of his driving. As the Judge pointed out, it was not irrelevant that his vehicle was in yaw as it rounded the bend. And, even if still under control, his ability to react to any eventuality was very likely to be compromised. There was nothing inconsistent with his still being in control of the vehicle, and driving into the junction without due care.
The argument that even at a lesser (unspecified) speed the same situation may well have occurred, depends in part on the contention that the deceased may have been driving at up to 140 kilometres per hour. There was no obligation on the Magistrate or Judge to nominate what would have been a safe speed of entry. The Magistrate said that the prudent, defensive driver would have approached the bend at a considerably slower speed. The Judge, agreeing, said “that the appellant was required to drive at a speed that enabled him to have a greater opportunity to react to whatever danger might appear, and in particular to do so without having to brake in a manner that caused him to cross onto the other side of the road”: [34].

There is no reversal of proof involved in the assertion that, had the appellant been travelling at a much slower speed into the junction, his chances of remaining on his side of the road and of avoiding a collision, would have been far greater.
These grounds essentially renew arguments put before the Judge. Apart from the Judge accepting the appellant’s contention that the “evidence required that the Magistrate approach the matter on the basis that it was reasonably possible that the deceased was travelling at any speed up to about 140 km/h”: [11]; [45] and [49], I agree with the Judge’s reasons for rejecting those arguments.
These grounds are not made out.
Ground 1 – Use of the evidence of custom
I have referred to the practice which many country drivers on this road surface customarily follow of driving nearer the centre of the road so that all wheels are on the better part of the surface. The appellant gave evidence of such a practice. He said that he would sit with his right-hand tyres in the centreline of the road and move as far as possible to the left upon seeing another driver approaching or when approaching a corner or intersection. Under this ground the appellant argues that the Judge imported into his determination of the required standard of care the esoteric knowledge which the appellant had about the practice, thereby holding the appellant to a higher standard of care. It was suggested that the specific risk relating to this particular roadway and the suggestion that drivers should drive in the expectation that oncoming traffic would be not only “in the middle of the road”, but would not move away, had been imported into that standard.
The background to this argument is as follows. To the single Judge it was complained that the Magistrate failed to have regard to the practice. The Judge found the complaint to be misplaced. He said the Magistrate was “clearly conscious of this practice in preparing his reasons”: [35]. Now the complaint is that the Judge incorporated knowledge of the practice into the objective standard. Neither of these two somewhat contradictory arguments is correct. An examination of the Judge’s reasons demonstrates as much. The Judge recognised at the outset that the standard of care was an issue to be determined objectively: [29]. It required a level of defensiveness in the driver’s speed appropriate to the circumstances confronting the driver: [42]. The Judge rejected the appellant’s complaint that the Magistrate failed to take the practice into account, observing that, on a proper reading of the Magistrate’s reasons, his focus was not on the precise risk that arose, but on the more general basis that a defensive driver should have foreseen the general possibility of danger at the junction: [36]. That danger could have taken a number of forms. It is wrong to say that the Judge expected the reasonably prudent driver to know of the specific practice referred to by the appellant and to drive in the expectation that another driver might depart from it. What he said was that the defensive outlook required of drivers related to the range of dangers which the junction might present and extended to foreseeing the possibility that another driver might drive in a way which did not meet the standard: [36].
Ground 2 – Complaint that Judge failed to undertake independent assessment
The appellant argues that the Judge failed to undertake an independent assessment of the evidence before the Magistrate in disposing of the ground (then numbered 1) which complained that the verdict was “unreasonable, unsatisfactory and against the weight of the evidence”. It is common ground that there was such an obligation on the Judge. What is in dispute is whether he fulfilled his duty.
Counsel argues that the best evidence that the Judge failed to undertake an independent assessment is found in his Honour’s reasons at [20] where, having set out the grounds of appeal, he foreshadowed the way in which he would approach them. He said:
Ground 2 raises a discrete matter and I shall deal with this first. Ground 1 is a general challenge to the Magistrate’s verdict, but does not take the matter any further than the more particular challenges in grounds 3, 4 and 5, and so does not require separate consideration. Grounds 4 and 5 both challenge the finding of driving without due care and so I will address these together and ahead of ground 3, which addresses the finding of the aggravating circumstance (namely the causal link to the deceased’s death).
It is not necessary to set out the precise grounds which made up the appellant’s appeal to the single Judge. They were very similar to the ones before this Court, inasmuch as the finding of causation and the finding that the appellant went into the junction too quickly and thereby drove without due care were squarely attacked in separate grounds. In a sense, ground 1 added little.
However, that the single Judge did undertake an independent assessment is demonstrated by the level of detailed analysis to which he descended. For example, in [51] the Judge took the matter beyond the analysis of the Magistrate and examined what measures would have been available to both the appellant and the deceased had the appellant been travelling more slowly:
If the appellant had been driving at the “considerably slower” speed of the reasonably prudent driver postulated by the Magistrate, the deceased would have had slightly more time to take evasive action, and at the very least swerve to the left more effectively than he did. Further, and more significantly, the appellant would have had a greater opportunity to react and take more effective evasive action. At that slower speed, he ought to have been able to hold his line on the correct side of the road, and on the inside edge of the road as he rounded the bend, including while slowing his vehicle further or bringing it to a halt if required. Further, if it became necessary to do so in order to avoid the collision, the appellant could have moved his vehicle into the area off the left side of the road. The photographic evidence suggests this would have been an evasive manoeuvre safely available to a driver taking the bend at a speed considerably lower than the 50 to 60 km/h at which the appellant was travelling. Indeed, the appellant himself acknowledged in his evidence that had he been travelling “a lot slower”, he would have been able to turn or move onto the area to the left of the road and continue to travel safely. The appellant did refer later in his evidence to the lip on the left inside edge of the bend having led him to believe he could not safely move further to the left. But I understand this evidence to relate to the situation confronting the appellant when driving at 50 to 60 km/h – when one can well understand a driver’s reluctance to drive over a lip and onto a different surface – rather than the situation which would have confronted him if he had been travelling “a lot slower”, or, to use the Magistrate’s language, “considerably slower”.
Even a cursory reading of the Judge’s reasons demonstrates that this ground is insupportable.
Ground 4 – Reference to understeer
This ground complains that the Judge arrived at his own meaning of the word “understeering” in circumstances where the term was not the subject of expert evidence and its use “was not consistent with Mr England’s alternative explanations for the road marks”.
The Judge found at [46] that the evidence of yaw marks on the appellant’s side of the bend indicated “at least some level of slippage, and hence discrepancy between the steering input of the appellant and the direction of his vehicle”. The Judge acknowledged that neither Mr England nor Sergeant Cox used the term “understeer” to describe the phenomenon, but found it to be an appropriate description of what the yaw mark indicated. The Judge found no error in the Magistrate’s use of that term.
Expert evidence about the meaning of the word “understeer” was not required. The word is in common usage. The verb “to understeer” is defined in the Macquarie Dictionary (A. Delbridge, et al (eds), 3^rd ed, Macquarie University, 2001) to mean “to tend to turn in a wider circle than indicated by the geometry of the wheels”. That definition is consistent with the way in which both the Judge and the Magistrate used that word. Mr England’s own evidence of the way in which a yaw mark is made was consistent with that usage. Mr England said:
Well, a yaw mark in straight theory is a mark made by a tyre that’s rotating and slipping partly sideways.
Mr England asserted that the presence of yaw marks did not indicate a loss of control. So much may be accepted, but on his own evidence they did indicate a degree of slippage. The trier of fact was entitled to have regard to that, and was not precluded from applying the term to it.
Ground 6 – Causation
This ground is framed as follows:
6.The learned Judge erred in his approach to causation in:
6.1 finding that the appellant’s driving was a substantial cause of the collision where the appellant’s driving was not defective according to the objective test; and
6.2 the collision was caused as a result of the appellant taking emergency measures where the oncoming driver was on its incorrect side of the road, was travelling at 140 km/hr and was possibly on his mobile phone.
The first part of the ground incorporates the contention that the appellant’s driving was not defective. This contention has already been rejected in my discussion of grounds 3 and 5.
The second part of the ground relies on the Judge’s acceptance in [49] of the possibility that the deceased’s “manner of driving was a substantial cause, and perhaps the main cause, of the collision …”. It is put that if the deceased’s driving could be so described then the appellant’s driving could not have been the operative cause of death.
As seen, part of the premise upon which this ground proceeds – that the deceased might have been travelling at up to 140 kilometres per hour – is not supported. As already discussed, the evidence told against such a possibility and the trier of fact did not make a finding to the effect that such a range was applicable. To suggest that the deceased was driving at such speed is mere speculation.
The appellant could not have been found guilty unless his driving was found to be a substantial cause of the collision. The Magistrate so found. The Judge agreed. That the deceased’s manner of driving might also have contributed does not undermine those findings. Mrs Shaw argued that in this case the deceased’s driving was so culpable as to have amounted to a novus actus interveniens. What I take Mrs Shaw to mean is that the deceased’s driving was conceivably so substandard that it swamped whatever culpability attached to the appellant’s driving, so that the appellant could not have been a substantial cause of the collision. Even if such a submission could ever succeed in a case involving two culpable drivers, this was not that case.
The terms of ground 6.2 focus on the failure of the evasive measures taken by the appellant. The findings of the Magistrate and Judge rest on the antecedent question of why those measures failed. They failed due to the appellant’s manner of driving as he entered the junction.
No error is made out.
Conclusion
None of the grounds of appeal has been substantiated.
I would dismiss the appeal.
LOVELL J: I agree with Vanstone J.