Peter Anthony Leahy v Troy Anthony Wilson
[2013] ACTMC 1
•31 January 2013
PETER ANTHONY LEAHY V TROY ANTHONY WILSON
[2013] ACTMC 1 (31 January 2013)
NEGLIGENT DRIVING OCCASIONING DEATH – effect of cannabis on driving skills – standard of care expected of the ordinary prudent driver.
Road Transport (Safety and Management) Act 1999 s6
Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953
No. CC 2022 of 2010
Magistrate: Dingwall
Magistrates Court of the ACT
Date: 31 January 2013
IN THE MAGISTRATES COURT OF THE )
) No. CC 2022 of 2010
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: PETER ANTHONY LEAHY
Informant
AND: TROY ANTHONY WILSON
Defendant
O R D E R
Magistrate: Magistrate Dingwall
Date: 31 January 2013
Place: Canberra
THE COURT ORDERS THAT:
(a) The information is dismissed.
1. In this matter the defendant has pleaded not guilty to a charge that he, in the Australian Capital Territory on 13 September 2009, did, by negligent driving, occasion death. The person whose death was occasioned was Lisa Jane Wilson, the defendant’s wife. The charge was laid under subsection 6(1) of the Road Transport (Safety and Management) Act 1999 (“the Act”).
2. There is no issue, and I find beyond reasonable doubt that, at about 7.00pm on Sunday 13 September 2009, the defendant was driving a Mitsubishi Pajero Station Wagon, bearing Registration No. YGE92L, on Paddys River Road. His wife, Lisa Jane Wilson, was seated in the front passenger seat of the vehicle. Their four children and two other children were seated in the two rows of seats behind the driver’s and front passenger’s seats. The family had earlier been at a barbeque with friends at the Cotter picnic area and were heading home.
3. After entering a right hand bend on Paddys River Road, the defendant’s vehicle left the bitumen roadway, crossing over the left hand edge of the road, overturned and came to rest on its left hand side in a ditch at the bottom of a grass embankment.
4. At that time of day, it was dark and there was no street lighting. The road surface was dry and in good repair. The applicable speed limit was 100 kilometres per hour but the bend in question was subject to a 45 kilometres per hour advisory speed sign.
5. I am satisfied beyond reasonable doubt that Lisa Jane Wilson died as a result of massive head injuries sustained when the defendant’s vehicle left the roadway and overturned in the way I have described.
6. The only issue for determination is whether the vehicle left the roadway and overturned as a result of negligent driving by the defendant.
7. The prosecution case comprised the oral testimony of three witnesses and a number of signed statements which were tendered by consent.
8. The tendered statements included those of police officers which recounted their involvement when they either arrived at the scene of the incident, subsequently investigated the scene or obtained statements from witnesses.
9. The remaining tendered statements were made by five civilians. These described the scene of the incident when each came upon it and the assistance given to those involved. None saw the defendant’s vehicle when it left the road and, indeed, none saw it travelling along Paddys River Road prior to the incident. The only evidence of particular significance contained in these statements, for present purposes, is the reporting by two of the civilians who arrived at the scene very shortly after the accident, that the defendant had said that he had swerved to miss a kangaroo. According to one of these witnesses, Mr Mark Tyson:
Comments that the driver made to me was that he was driving. Um, they were going around a blind curve and a kangaroo was in the street, and he said that he should have just hit it, but he swerved to get out of the way, and wound up rolling the vehicle over the embankment.
10. Constable Peter Leahy gave sworn evidence. He told of his observations of the scene when he arrived, particularly markings on the roadway caused by the defendant’s vehicle, his subsequent attendances at the scene to take measurements and the use of those measurements to create scale plans of the collision scene. He also gave evidence of tests carried out by him and Sergeant Dauth for the purposes of establishing the speed of the defendant’s vehicle at the time he lost control of it. Constable Leahy also gave evidence that he had taken a number of photographs of the scene, both on the night of the incident and subsequently. These were tendered.
11. Constable Leahy conducted a taped record of conversation with the defendant five days after the incident. Throughout the questioning, the defendant maintained that, as he came into the start of the right hand bend, he saw a kangaroo in the middle of the road. He said the kangaroo bounded towards his vehicle and he swerved to the left to avoid it. His description of what occurred was as follows:
... I was coming up to the road, I seen a – vaguely seen – remember a speed sign on the side of the road, I can’t remember now what that actually said, the sign, what speed. But then I looked down at my speedo, myself, I’m pretty sure I was doing seventy five, in between seventy five and eighty k’s. And as I looked back up – in front, myself, it was – to me, it looked like it was a kangaroo, was coming, like, towards me. I sort of swerved to the left a little bit, and realise that I was getting a bit close to the edge of the road, so I hooked it back a little bit, to the right, and I think the arse end of the car hit the gravel, and started sliding, like, bouncing down, down the middle of the road. And then all of a sudden it just went into a roll, and we were rolling, I think we were rolling about three or four times, and then I think we come to a halt, yeah, into the embankment.
12. During the record of conversation, the defendant placed a mark on a photo of the commencement of the right hand bend indicating where the kangaroo was situated when he first saw it. The mark indicates that the kangaroo was just to the right of the double centre lines of the road, just at the start of the right hand bend.
13. Sergeant Richard Dauth also gave sworn evidence. At the time, he was a Team Leader of the Collision Investigation and Reconstruction Team within the Australian Federal Police. He had been a member of the team for some ten years and a team leader for about four and a half years. He was qualified to the level of Reconstructionist with the Institute of Police Technology and Management. No issue was taken by the defendant as to Sergeant Dauth’s qualifications and expertise in relation to motor vehicle collision reconstruction and the calculation of the speeds of vehicles involved in collisions, based on the nature and positioning of markings created by vehicles on a road surface, the final resting point and position of vehicles and the damage sustained by vehicles. There was also no issue taken in relation to Sergeant Dauth’s expertise as an automotive mechanical engineer and experience in carrying out mechanical examinations of motor vehicles involved in collisions.
14. Sergeant Dauth carried out a mechanical examination of the defendant’s vehicle and prepared a statement containing his report of that examination which was tendered. He found that the vehicle was in a reasonable condition for its age and kilometres travelled. He found no mechanical condition or defect which might have contributed to the subject accident.
15. Sergeant Dauth also prepared a report in which he attempted to determine the position of the defendant’s vehicle on the roadway just prior to the accident, the path it took and the speed at which it was travelling. His report was tendered. Sergeant Dauth reported as follows:
On the road surface, on the approach to the position where the Mitsubishi Pajero came to rest, were clearly visible fresh tyre scuff marks. These tyre scuff marks extended back a considerable distance. A striation was visible within the marks. These types of tyre scuff marks are known as critical speed yaw marks or just yaw marks. The beginning of the marks indicated the Mitsubishi Pajero went into a critical speed yaw.
Yaw is a term applied to a sideways movement of a vehicle, such as occurs when the rear of a vehicle rounding a corner sideslips and moves out from the curved path in which the vehicle had been moving. Yaw, which is the action of revolving around the centre of mass, commences at the time the rear tyres start to sideslip and depart from their normal tracking path ... Critical speed yaw marks can be used to calculate speed.
The yaw marks clearly indicated the Mitsubishi Pajero had approached the collision scene from the north, travelling in southerly direction. As it rounded the moderate right bend, the rear tyres lost lateral friction and started to track outside the front tyres. The vehicle started to rotate clockwise and this continued as the vehicle left the road surface and travelled onto the dirt shoulder on the left side of the road. The vehicle continued to rotate until it was considerably sideways to its direction of travel. When all four wheels were on the dirt shoulder and with the vehicle substantially sideways, it appears the tyres “dug in” and the vehicle rolled.
An examination of the yaw marks also showed the marks made by the tyres on the right side of the Mitsubishi Pajero began across the centreline on the ‘wrong’ side of the road. This is common and is often seen where a driver, presumably realising he or she is travelling too fast for a curve, tries to straighten out the curve by cutting into the other side of the road.
16. Sergeant Dauth carried out tests to determine the coefficient of function between the tyres fitted to the subject vehicle and the road surface where the yaw marks were observed. He then applied various formulae to determine the speed at which the defendant’s vehicle was travelling near the beginning of the yaw marks. He concluded that the vehicle had been travelling at an approximate speed of between 79km/h and 83km/h.
17. Sergeant Dauth also carried out a test, whilst driving a Volkswagen van, to determine the speed at which the subject bend in Paddy River Road could be safely negotiated. He found that the maximum speed he could safely negotiate the bend, whilst remaining within the correct lane, was approximately between 75km/h and 80km/h.
18. Sergeant Dauth concluded that:
It appears moments before the collision the Mitsubishi Pajero was travelling in a southerly direction on Paddys River Road. It entered a right bend, which is advisory signposted at 45km/h, at a speed calculated to be between 79km/h and 83km/h (approximately). The driver may have tried to straighten out the bend by partly cutting onto the opposite side of the road. The cornering forces exceeded the lateral friction limits of the tyres. The rear tyres commenced to track outside (i.e. to the left) of the front tyres. The vehicle went into a condition known as critical speed yaw. It commenced to rotate clockwise and veered toward the left shoulder of the road. When all four wheels were on the dirt shoulder and with the vehicle substantially sideways, it appears the tyres “dug in” and the vehicle rolled. The primary cause of the loss of control appears to be entering the bend at too higher speed.
In cross-examination, Sergeant Dauth maintained his view that the defendant lost control of his vehicle as he negotiated the bend because he had entered the bend at too high a speed. However, he conceded that he himself had been able to safely negotiate the bend, during the test he had carried out, travelling at a speed of between 75km/h and 80km/h. He also conceded that when he carried out the test he did not take the same line through the bend as the defendant had – a factor which would affect the speed at which the bend could be safely negotiated.
Although Sergeant Dauth was certain that at the moment the defendant’s vehicle commenced to yaw it was partly across the centreline and partly within the oncoming traffic lane, he conceded that he could not say where the vehicle was positioned 60 or 70 metres before the commencement of the tyre marks seen on the roadway. Nor could he exclude the possibility that the vehicle got to the position on the roadway where those marks commenced as a result of the defendant swerving his vehicle to avoid a kangaroo.
A blood sample taken from the defendant two hours and five minutes after the accident was tested. The analyst reported that tetrahydrocannabinol (“cannabis”) was detected in the blood at the level of 45 nanograms per millilitre of blood and ethyl alcohol at a concentration of less than 0.02 grams of ethyl alcohol per 100 millilitres of blood. I note that the level of ethyl alcohol in the blood was not precisely stated. In my view, on this evidence, it is only open to me to find that some small amount of alcohol was detected in the defendant’s bloodstream.
Dr Morris Odell, a physician who was at the time a senior physician in the Clinical Division of the Victorian Institute of Forensic Medicine, was asked by the informant to provide his opinion in relation to “the involvement of alcohol and drugs in this case”. He, of course, had been provided with the results of the analysis of the defendant’s blood.
Dr Odell explained the nature and behaviour of cannabis in the body once it is ingested as follows:
(Cannabis) is the generic name given to the drug obtained from the plant Cannabis sativa. It is usually consumed by smoking a product of the plant and this results in rapid ingestion of the active component, delta-9-tetrahydrocannabinol (THC). THC levels rise rapidly in the minutes following administration and peak within two hours. Peak levels may reach 150 ng/ml or more. The blood level of THC falls rapidly and usually reaches a baseline level at about 2-3 hours following administration. In subjects who are not regular smokers, the baseline level is very low and may not be detected by analytical laboratories; in regular heavy smokers there may be a baseline level usually less than 5 ng/ml.
The rapid fall in THC level reflects its redistribution into the fatty tissues of the body including the brain where it exerts its psychomotor effects. These effects may continue after the blood level of THC has fallen to baseline levels as the substance is still exerting its effect in the brain. Because of this behaviour in the body, levels of THC above about 4-5 ng/ml are evidence of consumption of cannabis within the preceding two or three hours. It is however not possible to determine the peak level of THC from a single measurement presumably taken in the declining phase. For this reason, it is also not possible to correlate a blood level of THC precisely with any degree of impairment, however it is inevitable that a person with an extremely high level of THC of 45 ng/ml would still be affected by the recent consumption of the drug.
Dr Odell then explained the effects of cannabis and alcohol within a person’s bloodstream as follows:
Effect of cannabis on driving ability
As a central nervous system depressant and hallucinogen cannabis exerts a generally negative effect on psychomotor skills such as those required for driving. THC is known to have a profound impairing effect on driving skills and this is made worse when it is combined with other sedating drugs including alcohol. Effects include reduction in perceptive skills, a slowing in reaction time, dulling of reflexes, a dilation of time perception and an overall reduction in the capacity to react quickly to stressful situations.
Because of the way it is handled in the body, blood levels of THC are not directly related to impairment in the same way that applies to other drugs such as alcohol. For this reason it is not yet possible to attribute a crash risk reliably to any given blood level of THC. However studies that have measured impairment from THC under controlled conditions have found impairment present at levels over 5 ng/ml and a very high correlation between levels over about 10ng/ml and significant impairment on psychomotor tests. In one recent study, 100% of the experimental subjects were severely impaired at THC levels over 30 ng/ml (Ramaekers et al. 2006).
Combined use of Alcohol and Cannabis
This combination has been shown to be particularly effective in degrading driving skills. In experimental studies, subjects given cannabis together with low doses of alcohol have been found to have a degree of impairment exceeding the effect of either substance alone at the levels used (Ramaekers et al. 2000; Moore et al. 2007).
In Dr Odell’s opinion, the defendant had an extremely high level of cannabis in his bloodstream at the time that a sample of his blood was taken and, at the time of driving, the level would have been even higher, suggesting that he ingested the drug very shortly before he began to drive. In his opinion, the defendant’s driving skills would have been adversely affected by the effects of cannabis, together with alcohol, at the time of the collision to the extent that he would have been incapable of having proper control of a motor vehicle.
As to the alcohol detected in the defendant’s blood, the questions put to Dr Odell in Chief when he was called to give evidence were based on the proposition that the level of alcohol in his bloodstream was 0.02 grams per 100 millilitres of blood. It was not. As I have found above, the evidence only supports a finding that some alcohol was detected, it was less than 0.02%, but the exact concentration is not known.
The only evidence as to what alcohol the defendant had consumed before the accident came from the record of conversation conducted with him by the informant and his own evidence. He said he had drunk no more four or five stubbies of beer over a period of about five hours, the first at about 12.30 pm and the last about half an hour before the accident. Bearing in mind Dr Odell’s evidence about the rate of elimination of alcohol from the bloodstream (between 0.01% and 0.02% per hour) and the evidence that only a small amount was detected in the defendant’s blood taken a little over two hours after the accident, I am not satisfied beyond reasonable doubt that any alcohol present in his bloodstream could have affected his capacity to drive. Similarly, I am not satisfied beyond reasonable doubt that the presence of a small amount of alcohol in his bloodstream had any interactive effect with the cannabis in his bloodstream so as to adversely affect his capacity to drive. Accordingly, to the extent that Dr Odell considered that the alcohol in the defendant’s bloodstream increased his incapacity to properly control a motor vehicle resulting from the cannabis in his bloodstream, I reject his opinion as not being based on established fact.
In cross-examination, Dr Odell agreed that it is difficult to establish a relationship between a person’s cannabis blood or plasma concentration and performance impairing effects. In this regard he said that “there’s not a good relationship between the reading and the effects ... what you’re seeing in the blood is purely evidence of recent use, it’s not related to impairment.” He further said that, even if he knew what the actual concentration of cannabis in the defendant’s bloodstream was at the time of the accident, he could not say precisely what was the relationship between that level and any impairment of the defendant’s driving capacity. He noted that “(T)his stuff doesn’t behave the same way as alcohol.” Ultimately, he said that all he could say was that in a general sense the defendant would have been intoxicated with cannabis but could not say which aspects of his driving skills and to what degree, were affected by the presence of even a high level of cannabis in his bloodstream.
He also conceded that the level of impairment of driving ability of cannabis in an individual could be affected by the fact that the individual is a regular user of cannabis who has developed some tolerance to the drug.
Ultimately what can be distilled from Dr Odell’s evidence is that, at the time of the collision, the defendant had a very high concentration of cannabis in his bloodstream and, in his opinion, speaking generally, that level of cannabis in his system would probably have rendered him incapable of having proper control of his motor vehicle but it is impossible to determine if, and to what extent, in the defendant’s specific case the cannabis in his system had such an adverse effect.
The defendant gave evidence in relation to what had happened just prior to the accident. He said that he had been coming up to the bend when he spotted a kangaroo on the road ahead. He said he had swerved to the left, the vehicle “hit the gravel”, he was pretty sure he then applied the brakes but by the time he “hit the brakes it was all over, I was down the gully, on the roof ...”.
The defendant said that as he approached the bend he was travelling at between 75 and 80 km/h. He had a vague recollection of glimpsing the 45km/h speed advisory sign to his left at the moment that he saw the kangaroo on the road ahead and started to swerve. He said that, at that moment, he was “too busy watching the road, the roo and trying to keep the car on the road”.
He was asked why he had not applied the brakes when he first saw the kangaroo. He replied that he had had to make a very quick decision in circumstances where it was dark, the road was narrow and one which he had never travelled before. His instant reaction was to swerve because the kangaroo was right on the bend.
The defendant was shown the photo of the scene of the accident on which, during the record of conversation, he had marked the position of the kangaroo on the roadway when he first saw it. He said the position of the kangaroo that he had indicated on the photo was not “dead accurate”. He thought that the kangaroo had been a bit further up the road than indicated by his mark – “just right on the bend”.
The defendant said that he had consumed three to four stubbies of beer over at least five hours before commencing to drive. He said that he had not consumed any other drugs on the day of the accident. He admitted to consuming cannabis the previous night but said that he had not consumed any cannabis that day. He had, however, been present when his wife consumed cannabis in their motor vehicle that day.
He testified that his memory of the events was not good. He was unable to replay the accident in his mind but sometimes got little flashbacks of it. In this regard, I note that, in the accident, he suffered a head injury, accompanied by a lot of bleeding, which required stitching. In addition, his opportunity for observation was limited by the suddenness of the incident and his ability to try and recall the incident after the accident and even when interviewed by the police, would have been affected by the mental trauma associated with the death of his wife, the life threatening danger his children, and the children of others, had been placed in and his own injury.
The defendant maintained his account of the accident during his cross-examination. He also adhered to his evidence that he had not consumed cannabis during the day prior to the accident.
An issue as to the defendant’s credibility arose as a result of the analysis of his blood which detected the presence of a high level of cannabis.
In our system of justice a great deal of trust and reliance is placed on the oath or affirmation of witnesses. Accordingly evidence given on oath or affirmation is not to be rejected unless a court finds a firm basis for doing so.
In the defendant’s case, he impressed me as an honest and truthful witness, doing his best to give evidence based upon what recollection of events he had. Apart from the cannabis issue, I find no basis for doubting his evidence. Of particular relevance, in that regard, is the fact that, almost immediately after the accident, and within a space of time and in circumstances of great personal stress for the defendant – which one would think provided little opportunity to concoct an explanation for the accident – he stated to two people who arrived on the scene that he had swerved to avoid a kangaroo.
Given my general view of the defendant as an honest and truthful witness, I do not find that he was being untruthful about using cannabis on the day of the accident. His evidence about his use of cannabis generally seemed to be largely based upon his usual practice of smoking cannabis each night rather than a specific recollection of any particular instance. That, taken with the effects of the accident upon his recollection, raises the real possibility that he was mistaken in his recollection as to when he had last used cannabis prior to the accident.
I accept the defendant’s version of events as to how the accident occurred, particularly as to the presence of a kangaroo on the bend ahead of his vehicle and his response to it. However, I do not accept his evidence as to the non-ingestion of cannabis earlier that day.
At the close of the prosecution’s case, I asked the prosecutor to particularise the defendant’s negligence which the prosecution alleged caused the death of the defendant’s wife. In response, the prosecutor particularised the negligence as being “a failure to observe the road and the conditions of the road and drive according to those conditions” whilst intoxicated by cannabis. She added that effectively the negligence specifically alleged was that he had entered the bend in the road at too great a speed to enable him to safely negotiate it.
In order to establish that the defendant drove negligently, the prosecution must establish beyond reasonable doubt that the defendant drove his “motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances” (see Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953 at para 27).
Subsection 6(2) of the Act provides:
(2) In deciding whether an offence has been committed against subsection (1), the court must have regard to all the circumstances of the case, including –
(a)The nature, condition and use of the road or road related area where the offence is alleged to have been committed; and
(b)The amount of traffic on, or that might reasonably be expected to have been on, the road or road related area.
This is an inclusive provision. It is clear from the use of the phrase “all the circumstances” that circumstances surrounding the defendant’s driving additional to the specific matters mentioned in the subsection must be taken into account. In this case, the sudden observation of a kangaroo on the road ahead, as the defendant entered the bend, is clearly a circumstance to which the court must have regard.
I shall firstly deal with the cannabis issue. It is clear from the evidence that the defendant had a significant amount of cannabis in his bloodstream while he was driving his vehicle and approaching the bend. It is also clear from Dr Odell’s evidence that cannabis is “known to have a profound impairing effect on driving skills” and that these effects “include reduction in perceptive skills, a slowing in reaction time, dulling of reflexes, a dilation of time perception and an overall reduction in the capacity to react quickly to stressful situations”. It was also clearly Dr Odell’s opinion that the defendant’s “driving skills would have been adversely affected by the effects of cannabis ... at the time of the collision” to the extent that he “would have been incapable of having proper control of a motor vehicle”.
However, Dr Odell’s evidence is qualified in this case by the fact that “there’s not a good relationship between the reading and the effects ... what you’re seeing in the blood is purely evidence of recent use, it’s not related to impairment”. He agreed that even if he knew what the actual concentration of cannabis in the defendant’s bloodstream was at the time of the accident – a matter which cannot be determined – he could not say precisely what was the relationship between that level and any impairment of the defendant’s driving capacity. Nor could he say which aspects of his driving skills, and to what degree, were affected by the presence of even a high level of cannabis in his bloodstream.
In my view, in light of Dr Odell’s evidence, the involvement of cannabis in affecting the defendant’s driving ability as he approached and negotiated the bend is a matter of speculation. There is no basis for finding beyond reasonable doubt that the defendant was affected by cannabis to such an extent that it affected his judgment as to the appropriate speed at which he should have entered the bend, nor that it affected his judgment, reflexes and reaction time when confronted with a kangaroo on the road just ahead.
In any event, if, as I find below the defendant’s driving as he approached and entered the bend and his reaction to suddenly seeing a kangaroo on the road ahead cannot be said to be itself negligent, it is difficult to see how I could be satisfied beyond reasonable doubt that his ability to properly control his vehicle was diminished by the presence of cannabis in his bloodstream.
The primary contention put forward by the prosecution was that the defendant had entered the bend at a speed which was in excess of the speed at which he could safely negotiate it and, as a result, the vehicle commenced to “yaw”, resulting in complete loss of control of its steering. This contention was based on the tyre marks left on the roadway by the defendant’s vehicle and the interpretation of them by Sergeant Dauth and Constable Leahy.
In considering their opinions, I bear in mind that they were both sceptical of the defendant’s version of events, particularly the presence of a kangaroo on the roadway which caused the defendant to swerve. Their opinion, that the defendant’s loss of control of the vehicle resulted from him entering the bend at too great a speed for the line he was taking through it, was largely based on the fact that the tyre marks on the road commenced a bit over the centre driving lines, thus placing the vehicle on the incorrect side of the road on the apex of the bend. In Sergeant Dauth’s opinion, if the defendant had swerved to the left to avoid a kangaroo, it is difficult to understand how the tyre marks could have commenced slightly over the centre dividing lines.
As I have noted above, the defendant’s recollection of events was not good, by reason of the injury to his head and the circumstances of the accident. In my view, it would have been difficult for him, let alone a driver whose recollection was unaffected, to later recall where exactly on the road his vehicle was positioned at the very moment he saw a kangaroo ahead and where exactly the kangaroo was positioned. It follows, therefore, that the possibility cannot be excluded beyond reasonable doubt that, before commencing his avoidance action, the defendant’s vehicle was close to the centre of the road or, indeed, partly on the incorrect side of the road in an attempt to straighten out the bend. Nor can the possibility be excluded beyond reasonable doubt that he swerved first left and then right when he saw the kangaroo but could not later recall this.
In my view, it is unsafe to rely on the defendant’s evidence as to the position of his vehicle and the kangaroo and their relative positions, imprecise as it was, so as to exclude the possibility that the vehicle took the course it did solely as a result of the defendant’s sudden response to a kangaroo on the road ahead.
The effect of the prosecution’s contentions was that, even if there was a kangaroo on the road ahead, it was inconsequential as a cause of the defendant’s loss of control of his vehicle because he had commenced to negotiate the bend at a speed that was too high to allow him to negotiate it safely. In this regard, emphasis was placed on the presence of a 45 km/h advisory speed sign before the commencement of the bend and reliance was placed on Sergeant Dauth’s experiment in himself driving through the bend.
The advisory speed sign was just that – “advisory”. The speed limit on that part of the road was 100 km/h. On the basis of Sergeant Dauth’s calculations, the defendant negotiated the bend at a speed of approximately between 79km/h and 83km/h. Sergeant Dauth negotiated the bend, taking a line which was not necessarily the same as the one which the defendant had started to take before his avoidance action, and found that he could safely negotiate the bend at a speed of approximately between 75km/h and 80km/h. Accordingly, I am not satisfied beyond reasonable doubt that, by entering the bend at a speed as high as 83 km/h, notwithstanding the 45km/h advisory speed sign, the defendant departed “from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances”. There is simply no basis for a finding that it was the speed of the vehicle into the bend which caused the defendant to lose control of the vehicle’s steering.
Clearly, the defendant did lose control of the vehicle’s steering when he got to the apex of the bend and, on the basis of Sergeant Dauth’s evidence it was the speed of the vehicle at that point of the roadway which caused it to commence to “yaw”. However, this being a circumstantial case, the prosecution has not excluded beyond reasonable doubt the reasonable hypothesis that the vehicle was in the position where the tyre marks commenced, and travelling at a speed of up to 83km/h, because, when he saw the kangaroo on the road ahead, the defendant chose to steer his vehicle away from the kangaroo and to not brake, as he might have done in normal circumstances.
The prosecution contended that, even if it were accepted that the defendant in fact was confronted with a kangaroo on the road ahead and chose to swerve his vehicle and not brake, he was negligent in so choosing. This was not a particular of the charge previously provided by the prosecution. In any event, given the suddenness of the appearance of the kangaroo ahead of him and the need for a split second decision as to what action he should take, I am not satisfied beyond reasonable doubt that the action the defendant chose to take was a “departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances”. It is always possible after an accident to determine a safe or better way for things to have been done, this is always done with hindsight applied in a calm situation and after consideration of all the circumstances that have been investigated and revealed. On the other hand, in determining what the ordinary prudent driver would do in the circumstances, one has to have regard to the suddenness of being confronted by a kangaroo as one comes around a bend and the fact that such an event is not something often encountered by drivers, if previously encountered at all. In my view, in these circumstances, it simply cannot be found that the ordinary prudent driver, so confronted and needing to make an instantaneous decision, would not decide to swerve the vehicle and not apply the brakes. In my view, to find otherwise would be placing too high a standard on drivers.
Accordingly, I am not satisfied beyond reasonable doubt that the accident which resulted in the death of the defendant’s wife occurred as a result of negligent driving by him. It follows that I order that the information be dismissed.
I certify that the preceding fifty-nine (59)
numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Magistrate Dingwall.Associate:
Date: 1 February 2013
Counsel for the Informant: S McMurray
Solicitor for the Plaintiff: Director of Public Prosecutions ACT
Counsel for the Defendant: M Kukulies-Smith
Solicitor for the respondent: Kamy Saeedi Lawyers
Date of hearing: 17 and 20 January 2011
Date of judgment: 31 January 2013
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