R v Bartlett - [2009] SADC 14

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BARTLETT
Criminal Trial by Judge Alone
[2009] SADC 14
Reasons for the Verdict of His Honour Judge Boylan
19 February 2009
CRIMINAL LAW
Causing bodily harm by dangerous driving – victim, who was very drunk, lying on roadway. Accused drove his taxi past cars with hazard lights operating – ran over victim.
Verdict: Not guilty of causing bodily harm by dangerous driving but guilty of driving without due care and attention.

R v BARTLETT
[2009] SADC 14

Wayne Edwin Bartlett is charged with Causing Bodily Harm by Dangerous Driving. He pleaded not guilty and, at his election, I heard the trial without a jury. After I had viewed the scene and heard the evidence and counsels’ addresses, I adjourned to consider my verdicts. I now give reasons for the verdicts which I am about to deliver.
The particulars of the offence are that the accused, on the 10^th day of June 2005 at Murray Bridge, drove a motor vehicle in manner which was dangerous to the public and thereby caused grievous bodily harm to Zakir Hussain.
At about 11 p.m. on Friday 10 June 2005, Zakir Hussain, who was very drunk, lay down on the carriageway of Swanport Road at Murray Bridge. Some approaching drivers saw him and stopped their vehicles. One man rang the police. Drivers and their passengers stayed at the scene waiting for the police to arrive. Some of the cars were parked in the roadway with hazard lights flashing to warn of a hazard on the road. The accused drove past those cars and ran over Mr Hussain.
The prosecution alleges that the accused failed to keep a proper lookout of the road ahead of him and that, in the circumstances as they were, that failure amounted to driving in a manner dangerous to the public.
There is no dispute that the accused was the driver of the car which ran over Mr Hussain, that Mr Hussain’s injuries amounted to grievous bodily harm and that Mr Bartlett’s driving was a substantial cause of those injuries. I find those matters proved beyond reasonable doubt and say no more about those elements of the offence.
The issue for me is the characterisation of the accused’s manner of driving. Specifically, the issues for me are: first, has the prosecution proved beyond reasonable doubt that the accused drove in a manner dangerous to the public; and, secondly, if I am not so satisfied, has the prosecution proved beyond reasonable doubt that he drove without due care and attention?
Before answering those questions I have given myself a number of directions.
I have directed myself that the accused is presumed innocent unless and until his guilt has been proved. The burden of proving the charge, or the alternative charge, lies wholly on the prosecution. The accused is not obliged to prove anything. He has put forward a defence but he does not have to prove it. The prosecution must disprove it beyond reasonable doubt.
Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a suspicion of guilt or to show that Mr Bartlett is probably guilty. I am not to reach a conclusion of guilt by preferring the evidence of one or some of the prosecution witnesses to that of the accused. I must be satisfied, before I could convict him of the offence charged or of the alternative lesser offence, that the prosecution has proved beyond reasonable doubt each of the elements of the offence.
When I say I am satisfied, or that matters are proved, I mean that I am satisfied beyond reasonable doubt, or that the matter has been proved beyond reasonable doubt.
I have directed myself that driving a car on a public road requires a very high level of care and concentration. Realising that, the law provides for an ascending scale of offences. The less serious of them is driving without due care and attention. That offence covers any material departure from the standard of care expected of all motorists. It is at the bottom of the scale of seriousness because the law recognises that none of us is perfect and any of us may sometimes fail to devote to our driving the care and attention required by law. And because none of us is perfect, we have to accept the risk that when we use a public road, whether as a driver, passenger or pedestrian we may well meet someone else who is not driving with due care and attention. The law recognises that a risk of this kind is something we just have to accept as one of the ordinary incidents of modern life. People mean well, but sometimes they make mistakes – often due to inadvertence or a minor or temporary lapse in concentration.
But over and above that, it is a matter of common knowledge that there are some people who at times impose on other users of the road a risk which is by no means a fair or necessary risk of the road. They drive in a manner which imposes upon other users of the road a risk which any reasonable person in the situation of the accused would recognise as a real danger to the public. That is, what this Information means when it charges Mr Bartlett with driving in a manner dangerous to the public: it refers to the sort of risk which is in no sense an ordinary or necessary risk of the road and to a manner of driving which is treated as a serious crime.
The Scene
Swanport Road is one of the main roads in Murray Bridge. This accident occurred on a section of Swanport Road near to its junction with Montgomery Avenue. That section of Swanport Road runs roughly north-north-west to south-south-east. It is easier to refer to it as running north-south. At its intersection with Monash Terrace and Mulgundawah Road, there is a roundabout. From that roundabout, as one travels north, Swanport Road slopes downhill. About 120 metres north of that roundabout, on the western side of Swanport Road, is its junction with Montgomery Avenue.
Swanport Road comprises one carriageway divided into two lanes, one for north-bound and one for south-bound traffic. At the time of the incident the subject of this charge, there was a painted “island” which extended from the northern edge of the roundabout carriageway north into Swanport Road, eventually tapering to become a single unbroken white line.
I received in evidence a plan of the scene (not to scale), relevant pages from a street directory and a series of photographs. I viewed the scene and, before doing so, directed myself that the purpose of the view was for me to understand and to follow the evidence and apply it, but not to replace it with the result of the view. The view was particularly helpful to me in one respect. It demonstrated that the plan and the photographs give something of a false impression of the scene. They tend to “elongate” the relevant stretch of road. The distance between the roundabout’s northern exit and Montgomery Avenue is shorter than it appears in the exhibits. Unfortunately, no scale plan was ever prepared. The distance of 120 meters to which I have referred is an approximate distance measured by Senior Constable Atkins using the trip meter on his police vehicle on the occasion of the view.
There is street lighting on the eastern side of Swanport Road but not on its western side. I am satisfied that lighting, together with car headlights, was quite sufficient for approaching drivers to see Mr Hussain as he staggered in the road. I am satisfied that that lighting, together with headlights, was also sufficient to enable an approaching driver concentrating on the roadway ahead of him to see Mr Hussain as he lay on the road.
Driving conditions were fairly good at the time of the collision. It was not raining. I find that the road was damp in places but not wet.
Mr Bartlett’s car, a taxi, was in good mechanical condition and its condition in no way contributed to the collision.
The Witnesses
As I have said, a number of cars were stationary at the scene when Mr Hussain was run over. The occupants of those cars gave evidence. They were all plainly honest and did their best to help me. But, unsurprisingly, their accounts differ, especially about the exact positions of the various cars and about which cars had what lights on. I am not going to recount the evidence of each of the witnesses in detail. I shall, of course, say what I find proved about those matters. I shall say more, and in some detail, about the evidence of one of them, Ms Debra Whiting. She gave evidence of a conversation she had with the accused soon after the collision.
Senior Constable Atkins, the investigating officer, gave evidence about a number of matters. In particular, he told me that he calculated the speed of Mr Bartlett’s taxi at the time be began to brake, assuming the road was damp, to be between 37 and 40 kilometres per hour. I find that fact proved.
The accused also gave evidence. He, too, impressed me as honest. I shall return to his evidence.
I emphasise here that I have been very wary of the estimates of distances given by the witnesses.
The Prosecution Case
The prosecution case is as follows. Mr Hussain was lying in about the centre of the north-bound lane, roughly parallel to the centre line, with his head pointing towards the roundabout and his feet pointing in the opposite direction but at something of an angle to the western side kerb. He was lying south of the junction with Montgomery Avenue. Mr Colin Rawlinson’s car was parked some metres north of Mr Hussain’s position and north of the junction. It was parked by the kerb with its hazard lights flashing. Ms Susanne McNamara’s car was parked against the kerb on the western side of Swanport Road south of the junction. Its hazard lights, too, were flashing. Ms Weinert’s car was parked towards the centre of the north-bound carriageway but south of Mr Hussain and almost a car length forward of Ms McNamara’s car. Ms Weinert’s hazard lights were flashing. She and Ms McNamara had parked their cars in those positions and turned on their hazard lights to warn cars approaching from the south that there was a hazard on the road ahead.
Ms Debra Whiting’s car was also stationary at the scene but on the eastern side of the road. She had been driving south on Swanport Road and was preparing to turn right into Montgomery Avenue. She saw Mr Hussain on the roadway and stopped her vehicle a little short of the position in which she would have stopped it to give way to and then turn behind oncoming traffic; that is, her car was stationary in the south-bound lane with its driver’s side adjacent to the white centre line with the front of her car about opposite the northern footpath of Montgomery Avenue. The hazard lights were on.
Ms Whiting was wearing a long polo-neck jumper which extended from her chin to her mid thigh level. The jumper was bright pink but not, in my view, correctly described as “fluorescent” pink.
Mr Hussain has dark hair and was wearing dark clothes.
Ms Whiting is a nurse. As she drove up to the junction of Montgomery Avenue and Swanport Road she saw the other stationary cars and she saw Mr Hussain on the roadway. She stopped her car and got out. She approached Mr Hussain and was “squatting” on the road between him and her car, as the accused’s taxi drove through the roundabout and north towards her and Mr Hussain. The accused drove onto the wrong side of Swanport Road to pass Ms Weinert’s car. Ms Mcnamara put her arm out of the driver’s window of her car and waved “in a downward” motion in an attempt to get Mr Bartlett to slow down. Ms Whiting stood and waved her arms above her head to warn him. He accelerated a little and drove back onto the correct side of the road. He continued to drive north. Ms Whiting jumped out of the way of his vehicle back towards her car. There was a noise as he drove over Mr Hussain and then the sound of hard braking as he stopped his taxi.
Just before the accused got out of his car, according to Ms Whiting, she spoke to him. He wound down the driver’s side window and asked “Did I hit a dog?” to which she replied “No, you’ve hit a man”.
Ms Whiting then went on to say that she then started to go into shock, that she was feeling “traumatised, distraught, frightened, angry”.
Some little time later, she did not say how long, she had a further conversation with the accused.   He was standing on the footpath on the eastern side of Swanport Road.   Ms Whiting approached him.   She felt guilty that she had spoken to him angrily when she told him that he had hit a man.   She gave this account of the conversation:
“MS WHITING ‘Why didn’t you slow down? Why didn’t you stop?’
MR BARTLETT ‘I didn’t see you’.
MS WHITING ‘You must have seen me.’
She kept telling him that she was wearing the bright pink jumper and that if he had been looking, he could not have missed seeing her. According to Ms Whiting, the accused then said that she was wearing the wrong type of clothing for him to have seen her.   He went on to say:
“I didn’t see you because I was looking back.   I was looking in the rear view mirror at all the hazard lights”.
The conversation then ended because Ms Whiting was feeling angry and walked away.   She went looking for a cigarette because she was distraught.
Ms Whiting was asked about the accused’s demeanour at the time of that conversation. She said he was calm but she thought that he was probably in shock.
I shall come to the accused’s account of that conversation when I turn to his evidence. But I say now that I am not prepared to use Ms Whiting’s evidence of the conversation at all. She was a most impressive witness and plainly honest but she was upset and in shock at the relevant time. She thought that Mr Hussain was either dead or would die. In those circumstances, I remind myself of the danger of acting upon the evidence of a plainly honest witness who is convinced that her evidence is correct. Given the onus of proof on the prosecution, I discount her evidence of the conversation.
I turn to the accused’s case.
The Accused’s Case
Mr Bartlett gave evidence. He is 58 and has worked as a professional driver since leaving school. He has been driving taxis for about 20 years. On Friday the 10^th of June 2005, he slept for four hours during the afternoon and had no alcohol or drugs before beginning his shift at 6 p.m. At that time, he felt fit and rested.
He approached the scene of the accident from the south. He drove into the roundabout at about 15 kilometres per hour, looking to his left and right just before he did so. It was only as he came out of the roundabout to drive north along Swanport Road that he noticed anything unusual. He saw a car parked in the “no standing” zone just beyond the roundabout and a group of people on the footpath. Mr Bartlett was unsure if there had been an accident, if the people wanted a taxi or if they were just drunks “carrying on”. He did not increase his speed. He remembers looking through his front passenger window. He drove on and saw Ms Weinert’s car, stationary with its lights flashing. It was almost a car length ahead of the car in the “no standing” zone but in the middle of the lane and at a slight angle to it. To pass it, Mr Bartlett veered to his right and into the south-bound lane. It was then that he noticed Ms Whiting’s car with its headlights on. He thought that that car was travelling towards him and that it would collide with his taxi. He sped up a little and pulled back into his correct lane. As he did so, he glanced for a split second into his rear view mirror and then looked ahead again. He saw Ms Whiting waving her arms above her head. He reacted by looking up above her. He then heard a thump and braked. He said that he was still in the car when he asked Ms Whiting if he had hit a dog.
He agreed that he and Ms Whiting had a conversation a little later while they were standing on the eastern footpath. His account was different from hers:
“Ms Whiting: ‘Didn’t you see him?’
Mr Bartlett: ‘No I didn’t see him. Dark clothes like that, how do you see him in the dark?’
Mr Bartlett insisted that, during that conversation, he did not mention Ms Whiting’s clothing.
Mr Bartlett said that when he became aware of the first parked car, he could not see anything wrong. He said “It could have been hoons. I didn’t know what they were doing.” He had about $500 in the car and was apprehensive about being robbed. He just kept driving.
Findings
I find that Ms McNamara’s car was parked in the “No Standing” zone just north of the roundabout; Ms Weinert’s car was parked in the middle of the north bound lane, about a car length north of the front of Ms McNamara’s vehicle; Ms Whiting’s car was parked in the position I have already described. Mr Colin Rawlinson’s car was parked on the western kerb some distance north of the junction. All four cars had their hazard lights operating; the headlights of at least Ms Whiting’s and Ms Weinert’s cars were on. I cannot be sure of the exact position of any of those cars.
I find that Ms Hussain was lying south of the Montgomery Avenue junction. I cannot be sure of his exact position. Importantly, I cannot discount the possibility that Mr Hussain was significantly further south than the witnesses estimated and even further south than Senior Constable Atkins’s approximate point of impact.
I find that Mr Bartlett was driving at about 15 kilometres an hour from the time he drove out of the roundabout until he accelerated to a maximum of 37 to 40 kilometres per hour as he drove back onto his correct side of the road. I find that, immediately after doing so, he looked in his rear view mirror for a very short time. As he drove over Mr Hussain he was looking forwards but slightly upwards.
Conclusion
As Mr Bartlett approached the rear of Ms McNamara’s car, he was not speeding. His looking to the left towards the group on the footpath was reasonable. There is no suggestion that his doing so was unsafe. In my view, it was sensible for him to try and ascertain what was going on around him. Nor was it unsafe, in the circumstances, for him to pull out to his right to pass Ms Weinert’s car. It was then that he saw Ms Whiting’s car. As I have said, its hazard lights were flashing. Should he then have stopped? Or slowed even more? There is my trouble. It seems to me that Mr Bartlett was wary of what was happening on the footpath. His initial reaction to seeing the headlights of Ms Whiting’s car was to pull to his left and to do so quickly. That is an understandable reaction to a surprising situation. Having done so, he still thought – and this before he looked ahead towards Ms Whiting – that the “problem” was behind him. That, too, is understandable. But he should have kept looking ahead. There were, at that stage, two cars ahead of him with hazard lights flashing. But even it he had looked ahead, he may well still have hit Mr Hussain before he could have seen him.
I have been very much of two minds whether his course of driving, from the time he pulled out to his right until the time he looked up and saw Ms Whiting, was driving in a manner dangerous to the public. The situation on the road was highly unusual but he could not have been aware of how unusual it was until he saw Ms Whiting’s car. His reaction to seeing what he initially thought was an oncoming car was understandable.
I am not satisfied beyond reasonable doubt that he drove in a manner dangerous to the public. I enter a verdict of not guilty on the charge of causing bodily harm by driving in a manner dangerous to the public. In my view, however, it was a departure from the standard of care of the reasonable driver, in the circumstances as they were, when he was back on the correct side of the road and still moving forward towards cars with hazard lights flashing, to look in the rear view mirror, even if only for a split second. I enter a verdict of guilty on the lesser, alternative charge of driving without due care and attention.