Little v Police - [2016] SASC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LITTLE v POLICE
[2016] SASC 80
Judgment of The Honourable Justice Doyle
7 June 2016
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 - CAUSATION
The appellant was charged with aggravated driving without due care (the primary charge) and driving without due care (the alternative charge). The circumstance of aggravation was that the appellant’s driving caused the death of the deceased. The Magistrate found the appellant guilty of both counts.
The appellant appealed on grounds which included that the Magistrate erred in convicting him of both the primary and alternative offence, in finding that he drove without due care, and in finding that the circumstance of aggravation was established.
Held (per Doyle J), allowing the appeal in part:
1. No error has been established in the Magistrate’s finding of guilt in respect of the primary charge.
2. Having found the appellant guilty of the primary offence, the Magistrate erred in finding the appellant guilty of the alternative offence.
Road Traffic Act 1961 (SA) s 45, referred to.
Van Den Heuvel v Tucker (2003) 85 SASR 512, distinguished.
Taylor v Hayes (1990) 53 SASR 282; Fox v Percy (2003) 214 CLR 118; Stoeckel v Harpas (1971) 1 SASR 172; Police v Melisi (2010) 106 SASR 105; Brooks v Police (2013) 116 SASR 234; W, AJ v Police (2011) 111 SASR 83; Royall v The Queen (1991) 172 CLR 378; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, considered.

LITTLE v POLICE
[2016] SASC 80
Magistrates Appeal
DOYLE J:

The appellant was charged with two counts, namely aggravated driving without due care and driving without due care. They were charged in the alternative. The circumstance of aggravation alleged was that the appellant’s driving caused the death of the deceased.
The Magistrate found both counts proven. The appellant appeals on grounds which include that the Magistrate erred in convicting him of both the primary and alternative offence, in finding that he drove without due care, and in finding that the circumstance of aggravation was established.
Circumstances of the collision
Shortly before 9.00 am on 7 May 2013, a white Nissan four-wheel drive utility driven by the appellant collided with a red Mazda four-wheel drive driven by the deceased. The deceased died as a result of injuries suffered in the collision. The appellant was charged with the two offences the subject of these proceedings, both involving alleged contraventions of s 45 of the Road Traffic Act 1961 (SA).
The collision occurred in rural South Australia on Pudneys Road near where it intersects with Glynns Road. The Magistrate described Pudneys Road as running north-south, with Glynns Road running in a south-westerly direction to the point where it intersects with Pudneys Road in a T-junction.[1] Immediately prior to the accident, the deceased was travelling north along Pudneys Road towards the intersection. The appellant was travelling in a south-westerly direction along Glynns Road towards the same intersection. The appellant entered the intersection and drove through what was described as a sweeping bend onto Pudneys Road, with a view to travelling south down Pudneys Road. The vehicles of the appellant and deceased collided on Pudneys Road, just south of the intersection.
[1] As the Magistrate noted, it may be that Pudneys Road is in fact aligned more north-west/south-east, rather than directly north/south. But nothing turns on this.
Both Pudneys Road and Glynns Road were unsealed roads, with the surface consisting of white crushed limestone. At approximately the point of collision, Pudneys Road was 4.8 metres wide, noting that the average width of motor vehicles is about 2 metres. Pudneys Road was unmarked. It contained three obvious tyre marks, one in the centre and one on each outside edge of the road. This was consistent with the evidence to the effect that the practice on this road (and several others in the area) was for drivers to drive with their outside tyre in the centre of the road, but to move slightly to the left when approaching other vehicles or intersections so as to allow clear passage for a vehicle coming the other way. This practice reflected the generally better driving conditions towards the centre of unsealed roads such as Pudneys Road. The edge of Pudneys Road was loose gravel, and abutting that were vegetated verges, and then thick pine forests.
The pine forest on the east side of Pudneys Road obstructed the view on the eastern inside corner of the intersection with Glynns Road. For a driver approaching from Glynns Road, they could only see down Pudneys Road in a southerly direction as they entered the intersection and rounded the bend into Pudneys Road. The surface of the intersection was slightly damp at the time of the collision.
The signed speed limit on each road prior to the intersection was 100 km/h. On Pudneys Road there was a cross road advisory sign on the left as one approached the intersection from the south. On Glynns Road there was a T-junction sign as one approached the intersection.
The Magistrate made the following findings based on the appellant’s account of the accident. He had left home at about 8.30 am, and after negotiating various other roads he travelled south-west down Glynns Road to Pudneys Road. Some 300 metres before the intersection he passed the T-junction sign. He was travelling at about 80 km/h. As he approached the intersection he slowed to between 50 km/h and 60 km/h, feathering his brakes. He checked to his right, which was clear. His view to the left (to the south down Pudneys Road) was obstructed and he could not see around the bend until he passed the vegetation. When he was committed to taking the bend, and travelling at about 50 km/h 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 red Mazda appeared to be towards the middle of the road and maintaining that position. The appellant’s vehicle did not seem to be moving away from its course towards the Mazda, and as he was as far to the left of the road as he could be, the appellant applied his brakes, resulting in his vehicle skidding straight and sliding, then impacting with the red Mazda.
Accident reconstruction evidence was led from three experts. Senior Constable Halleday and Sergeant Cox, both from the Major Crash Investigation team, were called by the prosecution. They made various observations about the tyre marks at the scene of the accident and the state of the vehicles after the collision. While each made some errors of detail which affected their assumptions, the Magistrate was nevertheless satisfied as to the general reliability of their measurements and conclusions. The appellant called Mr England, who also had expertise in accident reconstruction. He based his opinions on his review of the prosecution evidence and reports.
In accepting the appellant’s account of the lead up to the collision (as summarised above), the Magistrate noted that it was consistent with the expert evidence – although I shall return to the detail of the evidence in relation to the yaw marks left by the appellant’s car later in these reasons.
In relation to the deceased’s speed, the appellant’s evidence was that the Mazda appeared to be travelling at about the same speed as his vehicle when he first saw it. The expert evidence, however, did not permit any conclusion to be drawn as to the deceased’s speed. 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.
The expert evidence was to the effect that while there was some evidence that the deceased swerved slightly to the left immediately prior to the collision, there were no skid marks left by the Mazda prior to the collision, suggesting no material braking effort on the part of the deceased. The explanation for this may have been inattention on the part of the deceased on account of him being distracted by his phone. The phone records showed a 43 second call from the deceased’s phone at 8.40 am, and a cancelled call at 8.41 am. The evidence was that one possible explanation for a cancelled call was a mobile phone black spot (or area of no coverage), and that there was such an area just short of the point of the collision. The deceased’s phone was found in the passenger footwell of his car after the collision. There was other evidence which suggested that the collision occurred within a window of a few minutes from the cancelled call. Based on all of the above evidence, the Magistrate held that he could not exclude the possibility that the deceased was in some way using his phone immediately prior to the accident.
There was evidence both from Sergeant Cox and Mr England as to the point of impact. Significantly, each placed the point of impact on the western side of the centre of the road, meaning that the appellant’s car had reached the ‘wrong’ side of the road by the point of the collision. While their evidence was similar, the Magistrate preferred the evidence of Mr England, which placed the point of impact slightly closer to the centre of the road, and slightly further north, than Sergeant Cox’s estimate.
The Magistrate analysed the expert evidence in relation to the yaw and skid marks left by the appellant’s car in some detail. The pre-impact tyre mark made by the right front wheel was 24.4 metres in length, with the first 13.45 metres consistent with the wheel continuing to rotate but slipping sideways (ie a yaw mark), and the last 10.95 metres consistent with the wheel no longer rotating, locked and sliding across the road (ie a skid mark). The pre-impact tyre mark made by the right rear wheel was 7.7 metres, and was a yaw mark. The pre-impact tyre marks made by the left front and rear wheels were skid marks of 19.5 metres and 2.5 metres respectively.
The Magistrate approached this evidence on the basis that a yaw mark indicated, or was at least consistent with, understeer - meaning that the vehicle was not turning as much as the driver intended. Contrary to the appellant’s submissions, I do not think this is inconsistent with Mr England’s evidence that the appellant was “in control” of his vehicle throughout the yaw marks. While the vehicle was not fully responding to the steering motion made by the appellant, it was still responding to, and hence in the control of, the appellant. The skid marks, however, indicate the point at which the wheels were locked and skidding, with the driver having lost control and unable to steer the vehicle, and the vehicle continuing in a more or less straight line.
The Magistrate’s ultimate conclusion that he was satisfied beyond reasonable doubt that the offences were proven is contained in the following paragraphs from his reasons:
Finally, Mr England’s opinion was that at the point Mr Little applied (and locked) his brakes his only options were to turn further to the left into the foliage or brake, and in the circumstances he did all that was possible to avoid a collision. In my view the prosecution evidence is not capable of excluding this conclusion as a reasonable possibility either.
However, neither of these hypotheses in my view exclude a finding that Mr Little approached and commenced to take the bend at a speed that was 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. In my view the circumstances that existed (and of which I am satisfied beyond a reasonable doubt existed) are as follows. Mr Little was travelling south-west on Glynns Road, intending to turn left onto Pudneys Road. He had passed a T-junction sign warning drivers travelling south-west on Glynns Road of the potential hazard ahead and indicating an upcoming obligation pursuant to Australian Road Rule 73 to slow down and, if necessary, stop to avoid a collision.
On approach to the intersection he had a clear view to his right but his view to his left was obscured by vegetation to the point that he only saw the red Mazda after having committed to the left turn. While he had slowed to 50-60 km/h his speed was nevertheless such that when he saw the Mazda and reacted to the danger his vehicle understeered and then skidded into the Mazda. 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 essence of the Magistrate’s conclusion that the appellant drove without due care was that he entered the intersection at a speed which did not give him sufficient time or ability to react to the danger that might have appeared around the bend, and thus drove at an excessive speed.
The Magistrate concluded by acknowledging that it could not be excluded as a reasonable possibility that the deceased’s driving also fell below the standard expected. The Magistrate no doubt had in mind his findings that it was possible the deceased was distracted by his phone and that he was travelling at up to 140 km/h. The Magistrate also noted in this context that the deceased had passed an intersection sign and was obliged to travel as close as practicable to the left hand edge of the road. However, the Magistrate said that regardless of whether the deceased was also at fault he was nevertheless satisfied beyond reasonable doubt that in the circumstances facing him as he approached the bend, the appellant’s driving fell below the standard of the reasonably prudent driver facing those circumstances, and that the appellant’s failure to exercise due care substantially contributed to the collision and consequently was a substantial cause of the deceased’s death.
Grounds of appeal
The appellant’s appeal raises the following five grounds.
1.   The verdicts of guilty are unreasonable, unsatisfactory and against the weight of the evidence.
2.   The Magistrate erred as a matter of law in failing to approach the determination of the issues upon the basis that count 2 was an alternative to count 1 such that the resulting convictions in relation to both offences cannot stand.
3.   The Magistrate erred in finding that the defendant’s manner of driving was a substantial cause of the collision.
4.   The Magistrate erred in finding that the defendant’s speed in approaching the bend was excessive. The notice of appeal then sets out five particulars or sub-grounds in support of this asserted error.
5.   The Magistrate erred in finding that the course of driving of the defendant was that upon seeing the Mazda, he reacted to it and his vehicle understeered and then skidded into the Mazda, whereas the defendant’s evidence (supported by expert evidence) was to the contrary.
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).
Ground 2: verdicts on primary and alternative charges
As mentioned, the appellant was charged with two counts that were charged in the alternative, namely aggravated driving without due care and driving without due care. The Magistrate concluded his reasons by stating that “I find Count 1 and Count 2 proven”.
The appellant complains that the Magistrate convicted the appellant of both counts, and that it was not open to his Honour to do so.
I agree, and the respondent accepts, that it was not open to the Magistrate to convict the appellant of both counts, or to find him guilty of both counts. The issue under this ground of appeal is whether that is what the Magistrate did.
Having found the primary offence proven, it followed automatically or necessarily that the alternative charge was proven because the elements of those two offences differed only by the additional requirement in the former (primary) offence that the aggravating circumstance be made out. On one construction of the Magistrate’s reasons, the concluding reference to both counts being “proven” was nothing more than a statement of his Honour’s conclusion that the elements of both offences were established beyond reasonable doubt, and was not a conviction or formal adjudication of guilt in respect of either offence.
The Magistrate stopped short of formally recording a conviction on either charge, presumably on the basis that this was a matter to be addressed at the time of sentencing. However, on my reading of the Magistrate’s reasons, his Honour went further than merely stating that the elements of the alternative charge were satisfied. As there is no other reference in the reasons to the Magistrate finding the appellant guilty of the primary offence, this last sentence of the reasons is best understood as the expression by the Magistrate of his conclusion that the appellant was guilty of the primary offence. And as the Magistrate expressed himself in identical terms in respect of both offences, it must also be understood as a finding that the appellant was guilty of both offences. This is supported, if not confirmed, by a handwritten endorsement on the file stating not only that the trial judge found “both charges proved beyond reasonable doubt” but also that his Honour found the appellant “guilty of both counts as charged”.
It was an error for the Magistrate to find the appellant guilty of both counts. As I have decided (for the reasons set out below) that the Magistrate was correct to find that the primary offence was established, it is appropriate that I set aside the finding of guilt in respect of the alternative offence.
Nature of the appeal
As this is an appeal by way of re-hearing, I am required to undertake an independent review of the evidence and the findings below, and form my own view as to the appropriate outcome. It is not necessarily enough to justify dismissing the appeal that there was evidence which meant it was open to the Magistrate to reach the decision he did. If, despite taking account of the Magistrate’s advantage in seeing and hearing the witnesses, I reach a different view on the evidence I must give effect to that by substituting my view for that reached by the Magistrate, or if it is appropriate by remitting the matter for a re-trial.[2]
[2] Taylor v Hayes (1990) 53 SASR 282.

That said, the appeal is not a hearing de novo and so I should not substitute my own view, or otherwise interfere, unless satisfied that the Magistrate has made an error. Further, in conducting my own review of the evidence and findings below, while not shying away from the task of weighing conflicting evidence and drawing inferences where appropriate, I should nevertheless have regard to the findings of the Magistrate, and any advantage that he may have had in making these findings.[3]
[3] Fox v Percy (2003) 214 CLR 118.
Grounds 4 and 5: driving without due care
The legal principles applicable to alleged contraventions of s 45 of the Road Traffic Act, and hence the obligation to drive with due care, are well established. The issue is to be determined objectively. The obligation to drive with due care is a duty to exercise the standard of care which one would expect of a reasonably prudent driver in like or similar circumstances. The reasonably prudent driver is expected to drive with a defensive outlook, that is, “a lookout that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger”.[4] Authorities have acknowledged that the duty of a driver does not require that they remain at a speed such that there is no practical risk of an accident.[5] Further, the prosecution must usually establish more than momentary inattention to the road ahead resulting from an appropriate checking of a speedometer or rear vision mirror, or some other minor and common error of judgment.[6] It follows that it is not always appropriate to infer a want of due care from the mere fact of an accident.[7] However, none of this is to gainsay the proposition that the test is one of a reasonably prudent driver, and that this involves a measure of defensive driving.
[4]    Stoeckel v Harpas (1971) 1 SASR 172; Police v Melisi (2010) 106 SASR 105 at [17].
[5]    Van Den Heuvel v Tucker (2003) 85 SASR 512 at [41].
[6]    Brooks v Police (2013) 116 SASR 234 at [22].
[7]    Brooks v Police (2013) 116 SASR 234 at [22].
In support of the central contention in the fourth ground of appeal, namely that the Magistrate erred in concluding that the appellant’s speed approaching the bend was excessive, the appellant relies upon the further contentions that the Magistrate erred in that he:
1.   incorrectly stated that the correct test was that the prudent driver should drive at a speed that anticipated that an oncoming vehicle at a sweeping bend would approach on the appellant’s side of the road where no lesser speed could avoid a collision in those circumstances;
2.   failed to have regard to the known practice that even if drivers travel partially on their incorrect side of the road, they were required to and customarily did move to their correct side of the road where there was oncoming traffic or where they were in the vicinity of intersections and junctions;
3.   failed to have regard to, or sufficient regard to, the evidence that the speed at which the appellant drove as he entered the bend was well below the speed limit, well below the critical curve speed for that bend, reducing further as he feathered his brakes, a speed at which the appellant was able to see the other vehicle in sufficient time to take evasive action, and a speed at which the appellant was able to maintain control of his vehicle for the purposes of such evasive action until the path of travel of the oncoming vehicle partially onto his side of the road meant a collision was inevitable;
4.   failed to distinguish between the driving of the appellant in the circumstances and conditions as he perceived them at the time and the driving of the appellant in response to the emergency situation created by the deceased’s vehicle approaching him partially on his side of the road and failing to move onto its correct side of the road;
5.   failed to have adequate regard to the precise area where the appellant’s view was obstructed in the context of the appellant’s slowed down speed entering the bend, his evidence of sighting the oncoming vehicle partially on his side of the road in sufficient time to anticipate it would return to its correct side of the road and for the appellant to take evasive action; and
6.   failed to have sufficient regard to the evidence as to the deceased’s path of travel partially on its incorrect side of the road, its speed, and the failure of the deceased to keep any lookout.
There is significant overlap between various of these contentions.
In relation to the first contention, I consider that it involves a misconstruction of the Magistrate’s reasons. Whether the manner of the deceased’s driving was such that there was a possibility of a collision regardless of the appellant’s speed is an issue addressed below in the context of my consideration of the appeal ground 3 challenge to the Magistrate’s finding of causation. The real issue in the present context was whether the appellant drove at a speed which involved a failure to take due care. In addressing this question, the Magistrate did not reason that the appellant was required to drive at a speed that would have avoided the collision. Rather, his Honour’s approach focused upon whether the appellant reduced his speed sufficiently to conform to the standard of a reasonably prudent driver approaching and entering the intersection in question. Such a driver, with an obstructed view to the south, was required to anticipate that some danger may emerge or present itself upon the appellant entering the intersection and travelling around the bend – be it a moving vehicle, or some other hazard such as a stationary vehicle, a person, a cyclist, an animal or an object (such as a fallen tree). He or she was required to adopt some measure of defensive driving so as to reduce or minimise the risk of a collision eventuating.
The effect of the Magistrate’s finding was that the appellant ought to have been driving at a lower speed than he was as he entered the intersection so that he had a greater opportunity to respond to any danger that presented itself. The nature of the intersection required a “considerably slower speed” than the appellant’s speed of 50 to 60 km/h. While not decisive, the appellant’s inability to keep or stop his vehicle on the left side of the road when he did encounter danger supported the finding that the appellant was travelling at an excessive speed, and hence failed to meet the relevant standard and apply the requisite measure of defensive driving.
Put another way, the effect of his Honour’s approach was not that the appellant was required to drive at a speed that ensured he could avoid colliding with an oncoming car which was speeding, travelling in the centre of the road and being driven by an inattentive driver. Rather it was 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. The appellant’s speed was excessive because it did not afford him that opportunity.
Turning to the second contention, the Magistrate on several occasions referred to the practice of drivers to travel partially on the wrong side of the road but move to the correct side of the road as they approached an oncoming vehicle or intersection. His Honour was clearly conscious of this practice in preparing his reasons. To the extent that the implicit complaint is that the Magistrate did not take account of the appellant’s entitlement to rely on this practice, or of the deceased’s failure to observe the practice by moving to the left, I consider the complaint to again be misplaced.
It is my view that the defensive outlook required of drivers extended in this case to foreseeing the possibility of a car approaching from the south along Pudneys Road, travelling towards or on the centre of the road, and failing to move from the centre of the road in a timely way. There are circumstances in which it is necessary to foresee the possibility of some level of substandard driving by other road users, and in my view this was one such occasion. But in any event, the Magistrate’s focus was not upon the precise risk that arose in this case. Rather, on my reading of his Honour’s reasons, he approached the matter on the more general basis that a defensive driver, foreseeing the general possibility of danger around the bend, ought to have driven at a speed that gave him a greater opportunity to react and avoid the danger than the appellant here gave himself.
Turning to the third contention, there is no reason to think that the Magistrate did not have sufficient regard to the fact that the appellant was driving at less than the speed limit and at less than the critical speed for the bend, and was feathering his brakes. None of these is inconsistent with the finding of driving without due care.
The speed limit of 100 km/h was not determinative of the speed at which a reasonably prudent driver would travel through the intersection in question.[8] Nor was the critical speed (ie the speed at which the driver was able to retain control, and the car maintain traction and steering). While Mr England’s estimate that the critical speed was 73 km/h was a relevant consideration, it was not a determinative consideration. If a driver is travelling at less than the critical speed, then in the absence of any obstacle or hazard presenting itself, one would expect the vehicle to take the bend or intersection safely. However, travelling at less than the critical speed does not of itself ensure that the driver has an adequate opportunity to respond to an obstacle or hazard that might appear around a bend, or upon entry into an intersection, particularly when the driver’s view as he or she approaches the bend or intersection is obstructed. As in this case, it does not ensure that the driver is able to bring his vehicle to a halt on his own side of the road in the event that he is confronted with an obstacle or hazard, or is otherwise able to take effective evasive action. In short, defensive driving consistent with the standard required by s 45 of the Road Traffic Act will on occasions demand a speed of less than the critical speed.
[8] Van Den Heuvel v Tucker (2003) 85 SASR 512 at [43].
The fact that the appellant was feathering his brakes was relevant in the sense that it demonstrated that he was travelling more slowly than he would otherwise have been travelling, and that there was some defensive aspect to his driving. However, it ultimately does not take the matter very far. If the appellant’s speed, despite him feathering his brakes, remained excessive for the bend or intersection in question then that is sufficient to establish the requisite want of due care.
This third contention also includes a complaint that the Magistrate did not have sufficient regard to the fact that the appellant drove at a speed at which he was able to see the other vehicle in sufficient time to take evasive action, and was able to maintain control for that evasive action until the path of travel of the oncoming vehicle partially onto his side of the road meant a collision was inevitable. It is true that the appellant did have time to take evasive action. However, the effect of the Magistrate’s reasons is that his speed was too fast to give him adequate time or opportunity to take more effective evasive action. In other words, rather than overlooking that the appellant gave himself an opportunity to take evasive action, the Magistrate’s conclusion was simply that the appellant should have been driving more slowly so that he gave himself a greater opportunity to take such action.
Nor in my view did the Magistrate overlook, or fail to have appropriate regard to, Mr England’s description of the appellant as maintaining control of his vehicle until a collision became inevitable and the appellant locked his brakes and began to skid. In considering the relevance of the evidence that the appellant maintained control to the point of him locking his brakes and skidding, it is significant that there were yaw marks prior to the skidding commencing. While Mr England’s evidence was that these marks did not indicate a loss of control prior to the skidding commencing, nevertheless, as the Magistrate found, they did indicate that the appellant’s vehicle was slipping or understeering at least to some extent. In my view, this element of slippage or understeer was supported by the evidence of Sergeant Cox in relation to the yaw marks, and is not inconsistent with the evidence of Mr England. While Mr England’s evidence was that traction and control would have been maintained up to the critical speed for that bend (which he estimated at 73 km/h), I do not think Mr England’s evidence can or should be understood in absolute terms. In other words, even at speeds less than the critical speed there may still be some degree of slippage or understeer, albeit not sufficient to result in a loss of control.
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.
The appellant’s fourth contention addresses something of a straw man. The implicit premise in this contention is that the Magistrate was critical of the appellant’s response to the emergency situation created by the deceased’s vehicle approaching partially on the wrong side of the road. But that is not an accurate reflection of the Magistrate’s reasoning. His Honour was not critical of the appellant’s response to the emergency situation once it presented itself. Rather, the Magistrate’s reason for concluding that the appellant drove without due care was his antecedent failure to approach or enter the intersection at a safe speed. It was this antecedent failure that meant the appellant did not give himself a sufficient opportunity to respond in a potentially more effective manner (for example, by being able to bring his car to a halt, or otherwise take evasive action, without skidding onto the wrong side of the road), despite him reacting reasonably to the emergency situation once it presented itself.
Turning to the appellant’s fifth contention, the complaint appears to be that the Magistrate did not have adequate regard to the fact that the appellant’s speed did enable him to see the deceased’s vehicle, appreciate that it was travelling partially on the appellant’s side of the road, and then take some evasive action once he appreciated it was not moving back onto its side of the road. There is significant overlap between this contention and those I have already addressed. For the reasons explained, the Magistrate’s reasons acknowledge the above considerations. The matters relied upon by the appellant are not inconsistent with, and in my view do not undermine, the Magistrate’s ultimate conclusion that the circumstances required that the appellant approach and enter the bend or intersection at a considerably lower speed than he did.
The appellant’s sixth contention also overlaps substantially with the contentions I have already addressed. The Magistrate accepted the evidence that the deceased’s vehicle was partially on the wrong side of the road, and allowed for the reasonable possibility that the deceased was travelling at up to 140 km/h and not keeping a proper lookout. While these circumstances certainly contributed to the collision, for the reasons I have explained they do not mean that the appellant was not driving at an excessive speed. It remains significant that the point of impact was on the wrong side of the road from the appellant’s perspective. While the mechanics and location of the collision depended to an extent upon the speed and position of the deceased’s vehicle, meaning that one cannot be precise in drawing any inference from the location of the point of impact on the ‘wrong’ side of the road, nevertheless the inability of the appellant to halt or keep his vehicle on the correct side of the road does support the Magistrate’s conclusion (based upon all of the surrounding circumstances) that the appellant’s speed approaching the bend was excessive. Even if the deceased’s manner of driving contributed to the collision, this does not undermine the Magistrate’s conclusion that the appellant’s speed was excessive.
The fifth ground of appeal complains that the Magistrate erred in finding that the appellant’s vehicle understeered. The appellant contends that this finding is contrary to Mr England’s evidence that the appellant remained in control of his vehicle even throughout the period of the yaw mark. I have already addressed the evidence on this issue. While accepting that the presence of a yaw mark does not indicate a loss of control, the mark here did indicate at least some level of slippage, and hence discrepancy between the steering input of the appellant and the direction of his vehicle. While neither Mr England nor Sergeant Cox used the term understeer to describe this phenomenon, in my view it is an appropriate description of what the yaw mark indicated. The degree of understeer may have been modest, and on the evidence of Mr England did not result in the appellant losing control of his vehicle prior to the brakes locking. However, I do not consider that the Magistrate erred in making reference to understeer as a relevant consideration in an overall assessment of the appellant’s driving.
For these reasons it is my view that no error has been established in the Magistrate’s finding that the appellant drove without due care, contrary to s 45 of the Road Traffic Act.
Ground 3: the circumstance of aggravation
The aggravating circumstance relied upon by the prosecution was that the appellant’s driving without due care “caused” the death of the deceased under s 45(3)(a) of the Road Traffic Act. This required proof beyond reasonable doubt that the appellant’s manner of driving was a substantial cause of, or significantly contributed to, the collision leading to death.[9] However, it did not require proof that the appellant’s manner of driving was the sole cause, or even the main or dominant cause. There may be more than one substantial cause.
[9] W, AJ v Police (2011) 111 SASR 83 at [51]; Royall v The Queen (1991) 172 CLR 378 at 398, 423.
The evidence established that the deceased was driving partially on the wrong side of the road. He did not apply his brakes, with his only evasive action being a slight swerve to the left immediately prior to the impact occurring. He was likely paying inadequate attention, possibly because he was using his telephone. It was reasonably possible that he was speeding, and at a speed of up to 140 km/h. It follows that the deceased’s manner of driving was a substantial cause, and perhaps the main cause, of the collision that occurred.
However, in my view, this did not preclude a finding that the appellant’s driving was also a cause of the collision. To the contrary, and taking the approach that causation is ultimately a question of fact to be determined through an application of common sense and experience,[10] I consider that the Magistrate was correct to find beyond doubt that the appellant’s manner of driving did significantly contribute to, and was a substantial cause of, the collision that occurred.
[10] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.

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”.
The appellant contested the finding of causation by relying upon the approach in Van Den Heuvel v Tucker.[11]In that case, the defendant was driving on a highway when, without warning, the left rear axle of his car broke, causing the wheel to separate from the car. The defendant lost control of his car, which veered to the right, ran off the road and rolled, injuring the plaintiff passenger. The trial judge dismissed the claim of negligence against the defendant on the basis that it was not established that his speed (110 to 120 km/h) or reaction to the situation was negligent. The Full Court, by majority, upheld this decision, rejecting the appellant’s contention that the defendant was driving at 140 km/h.
[11] Van Den Heuvel v Tucker (2003) 85 SASR 512.
Significantly for present purposes, the majority also held that even if the defendant had been travelling at the negligently fast speed of 140 km/h, causation was not made out. The majority acknowledged that the ‘but for’ test is not a universally appropriate test for causation, even as a negative criterion for liability, noting that an accident resulting from concurrent tortious acts is one situation where a different approach may be required.[12] In the circumstances of that case, the majority held that in order to establish that the defendant’s breach of duty caused, or materially contributed to, the accident, it was necessary to establish that had the defendant driven at a reasonable speed, he would have been able to avert the accident, or at least have had a materially increased chance of averting the accident.[13] Put another way, it was necessary to show that there was a material increase in the likelihood of an accident at the speed in question, compared with an identified speed at which the defendant should have driven.[14] As there was no evidence in that case identifying a speed at which a reasonably competent driver could have averted the accident, or even have had a materially increased chance of doing so, their Honours held that causation was not established.[15]
[12] Van Den Heuvel v Tucker (2003) 85 SASR 512 at [77]-[78].
[13] Van Den Heuvel v Tucker (2003) 85 SASR 512 at [74]-[75], [80].
[14] Van Den Heuvel v Tucker (2003) 85 SASR 512 at [79], [89].
[15] Van Den Heuvel v Tucker (2003) 85 SASR 512 at [75], [101],-[103].
In my view, this case is factually distinguishable. It was significant in Van Den Heuvel v Tucker that there was expert evidence to the effect that even at the speed of 110 km/h (which the trial judge had found was a reasonable speed, and which was 30 km/h less than the speed at which the appellant contended the defendant was negligently driving), the failure of the axle was such that the defendant had no realistic chance of avoiding the accident.[16] In the face of that evidence, there was no basis for the Court to infer that driving at a reasonable speed would have avoided, or have materially increased the chances of avoiding, the accident in the absence of specific evidence. On the other hand, in the present case, there was no expert evidence to the effect that at some lower speed there was no realistic chance of avoiding the accident. In my view, that left it open to infer, and the evidence which was led made it appropriate as a matter of common sense and experience to infer, that at the slower speed of the reasonably prudent driver, the appellant would beyond reasonable doubt have been able to avert the collision. In my view, for the reasons I have earlier explained, that inference could properly be drawn in the circumstances of this case despite the absence of positive evidence as to the precise speed at which the reasonably prudent driver would have driven. It was sufficient to approach the matter on the basis he or she would have driven at a “considerably slower” speed.
[16] Van Den Heuvel v Tucker (2003) 85 SASR 512 at [101].
Conclusion
In my view, the grounds of appeal challenging the Magistrate’s findings that the appellant drove without due care and that his driving caused the death of the deceased have not been made out. It follows that the appeal must be dismissed in so far as it challenges the Magistrate’s finding of guilt in respect of the primary or aggravated offence comprising count 1. However, for the reasons set out earlier, it is appropriate that I set aside the finding of guilt in respect of the alternative offence comprising count 2.
I therefore order:
1. The appeal is allowed to the extent that the Magistrate’s finding of guilt in respect of count 2 is set aside.
2. The appeal is otherwise dismissed.