R v Campbell - [2022] SADC 95

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CAMPBELL
Criminal Trial by Judge Alone
[2022] SADC 95
Reasons for the Verdicts of his Honour Judge Muscat
18 August 2022
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
Defendant charged with one count of causing death by dangerous driving, and one count of causing harm by dangerous driving - defendant pleaded guilty to the alternative offence of aggravated driving without due care in the Magistrates Court.
Defendant was not speeding or driving erratically nor had he consumed any drugs or alcohol.
The prosecution case was put on the basis that the defendant, while travelling at a speed of 53 km/h, deliberately applied sudden, harsh acceleration which caused his rear-wheel drive Lamborghini to slide out of control - whether driving amounted to dangerous driving or driving without due care.
Verdicts: Not guilty of both counts of dangerous driving.
Criminal Law Consolidation Act 1935 (SA) s 19A(1) and (3); Evidence Act 1929 (SA) ss 34P and R, referred to.
R v Coventry (1938) SASR 79; R v Kamleh (1990) 51 A Crim R 435; McBride v R (1966) 115 CLR 44 ; Jiminez v R (1992) 173 CLR 572 ; R v Kroon (1991) 55 SASR 476, applied.
R v HJS [2020] SASC 142; Police v Melisi (2010) 106 SASR 105, considered.

R v CAMPBELL
[2022] SADC 95
Primary offences

Alexander Campbell (‘the defendant’) is charged on an Information dated 21 May 2021 with the following offences:
First Count
Statement of Offence
Causing Death by Dangerous Driving (Section 19A (1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Alexander Campbell on the 22nd day of June 2019 at Glengowrie, drove a motor vehicle in a manner which was dangerous to any person and thereby caused the death of Sophia Naismith.
Second Count
Statement of Offence
Causing Harm by Dangerous Driving (Section 19A (3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Alexander Campbell on the 22nd day of June 2019 at Glengowrie, drove a motor vehicle in a manner which was dangerous to any person and thereby caused harm to Jordyn Oriana Callea.
Alternative offence of Aggravated Driving without Due Care
In the Magistrates Court the defendant was charged with the two primary offences and with an alternative offence of Aggravated Driving without Due Care. The defendant pleaded not guilty to the primary offences and guilty to the alternative offence of Aggravated Driving without Due Care at his committal hearing in that Court.[1] The defendant’s guilty plea to that charge was not accepted in satisfaction of the Information by the prosecution and he was committed to this Court for trial on the two primary offences and for sentence on the alternative offence.[2]
[1] Count 3 of the Magistrates Court Information dated 22 July 2019.
[2] Magistrates Court Certificate of Record for 24 February 2021.
Should the defendant be found not guilty of the primary offences then he stands to be sentenced for the offence of Aggravated Driving without Due Care, having admitted the offence in the Magistrates Court.[3]
[3] R v HJS [2020] SASC 142.
Trial by judge alone
The defendant pleaded not guilty to the charges and has elected to be tried by judge alone.[4]
[4] Notice of Election to be tried by Judge Alone made pursuant to s 7(1) of the Juries Act 1927 filed on 21 May 2021.
Legal principles
The defendant is presumed to be innocent of the charges. He is not required to prove anything. The obligation is upon the prosecution to prove the charges and to do so beyond a reasonable doubt. The prosecution must also exclude as a reasonable possibility any matter raised by the defendant that might affect proof of the charges.
I must bring an open and fair mind to the case. I must make my decisions without sympathy, prejudice or fear, and not be influenced by public opinion in relation to this matter.
In this case, a number of witnesses who were said to be experts or experienced in particular fields, were called by the prosecution to give evidence. The ordinary rule is that witnesses may speak only to the facts and not express opinions. An exception to that rule is that persons who are qualified in a particular area may express an opinion. Any opinions expressed are only of value if the facts upon which the opinion has been based have been established. Whilst neither the expertise or relevant experience of the witnesses, nor the opinions expressed by them, were seriously challenged by the defence, it remains a matter for me to decide the significance and weight to be afforded to the opinions expressed by those witnesses, in light of the issues in dispute in the trial.
Defendant did not give or call evidence
The defendant elected not to give or call any evidence. No adverse inference can be drawn against the defendant from this decision.
Absence of witnesses
Neither Simon Podlewski,[5] the driver of a black c63 Mercedes Benz AMG, who was travelling alongside the defendant on Morphett Road before the collision, nor the defendant’s wife, Diana Pham, who was a passenger in the defendant’s vehicle, gave evidence at the trial. The court cannot speculate why neither gave evidence. Again, no adverse inference against the defendant can be drawn from the absence of either witness from the trial. The case is to be decided only upon the evidence presented to the court.
[5] Simon Podlewski is a friend of the defendant.
Elements of each primary offence
Section 19A of the Criminal Law Consolidation Act creates the offences of dangerous driving causing death[6] and dangerous driving causing harm.[7]
[6] Section 19A (1).
[7] Section 19A (3).
Each offence comprises the following elements:
1.The defendant drove a motor vehicle;
2.The defendant drove the vehicle in a manner that was dangerous to any person; and
3.That by driving in that dangerous manner, the defendant either caused the death of, or caused harm to, another person.
Each of these elements must be proved beyond a reasonable doubt by the prosecution.
In this trial the only element in dispute was whether the defendant was driving his vehicle in a manner that was dangerous to any person. The manner of driving for this purpose is to be assessed objectively. In this context the objective test is whether a reasonable person, in the situation of the driver, would have appreciated the danger (real or potential) posed to any other person by the manner of driving involved. I will deal with the law in greater detail later in these reasons.
Undisputed Facts
On Saturday 22 June 2019, the defendant drove his Lamborghini Huracan to the Winterfest Car Meet held in the carpark of the Westfield Shopping Centre at Marion. His wife accompanied him as a passenger in the Lamborghini.
Joel Armstrong, a friend of the defendant, also drove to the Meet in his black Mercedes Benz c63 AMG. The two vehicles travelled together from a location on Main North Road in Salisbury Heights. Mr Armstrong said he witnessed the defendant’s driving and stated he did not see the defendant exceed the speed limit on the way to the Meet.
Another friend of the defendant, Simon Podlewski, also attended the Meet in his Mercedes Benz c63 AMG. He was accompanied by a friend, Adam Gabrieel.
Sometime after 9.30 pm all three drivers left the Meet together. After turning out of the Marion Shopping Centre carpark they travelled in their respective vehicles along Diagonal Road to drive to their homes in the northern suburbs.
After travelling along Oaklands Road the defendant and Mr Podlewski turned left into Morphett Road. Mr Armstrong missed the turn off and continued ahead before executing a U-turn.
Mr Armstrong said he witnessed the defendant’s driving after leaving the Meet and before missing the turn at Morphett Road. He said he did not witness the defendant speeding or varying his speed.[8] He described the defendant as driving in a ‘respectful manner’.[9]
[8] In the sense of slowing down or speeding up: T 119.
[9] T 116.
He was not a witness to the defendant’s driving on Morphett Road but did arrive at the scene after the collision.
Mr Gabrieel, who was the passenger in the front seat in Mr Podlewski’s Mercedes, described the driving of all three vehicles after they left the Meet as ‘driving casually and on the speed limit’.[10]
[10] T 105.23 - 32.
After turning into Morphett Road, the defendant was driving in the left of the two northbound lanes (on the western side of the road) and Mr Podlewski was driving in the right lane and alongside the defendant’s Lamborghini.
It was a clear night and at the relevant time the temperature was around 6°C.[11] The road surface on Morphett Road was dry and traffic was light.
[11] The automatic weather observation at the Adelaide Airport recorded the temperature on 22 June 2019 as 6.6°C at 9 pm; 6.2°C at 9.30 pm and 4.9°C at 10 pm: Agreed Fact 3.
Sophia Naismith and Jordyn Callea, both aged 15 years, were walking south along the western footpath on Morphett Road, Glengowrie at the time.
As the defendant was driving his Lamborghini, he lost control of the vehicle just north of the T-junction with Bells Road. The Lamborghini suddenly veered to the left, leaving the road and mounting the kerbing. It then travelled next to a bus shelter and over an adjacent bus zone sign before continuing onto the footpath and in the direction of the House of Tien Restaurant.
As the two girls were walking across the driveway leading into the House of Tien Chinese Restaurant, they were struck by the Lamborghini.
The Lamborghini continued to travel in a north westerly direction over a garden bed of the restaurant carpark before crashing into some pillars at the front entrance to the restaurant and coming to a stop.
Sophia Naismith sustained critical head injuries and died at the scene.[12] Jordyn Callea suffered fractures to her left lower leg (tibia and fibula) and a fracture of a metatarsal bone of the right foot. She also sustained bruises to both knees, right foot and right hand.[13]
[12] Agreed Fact 1.
[13] Statement of Dr Ruurd Jaarsma (Exhibit P11) at [5].
Issues in contention in the trial
It is not suggested that the defendant was driving his Lamborghini at excessive speed along Morphett Road before he lost control of it or that he was affected by alcohol or illicit substances. The road conditions played no role in the loss of control of the vehicle and there was no mechanical fault or defect in the Lamborghini which may have caused or contributed to its loss of control.
The critical issues for determination in the trial were why the defendant lost control of his Lamborghini and whether that driving amounted to driving in a manner dangerous to any person. The evidence and arguments presented during the trial were focused on these issues.
The prosecution contended the defendant lost control of his Lamborghini due to his deliberate and harsh acceleration, causing the high-powered rear-wheel drive vehicle to swerve severely to the left and the defendant was then unable to correct the direction of travel. The Lamborghini has then begun to yaw and in the process collided into the girls. The prosecution argued that such a deliberate and harsh act of acceleration of a powerful vehicle, which it argued caused the defendant to lose control, amounts to driving in a manner dangerous. The prosecution must prove this beyond a reasonable doubt. The prosecution contends that the deliberate and harsh acceleration by the defendant occurred in circumstances he was aware of which contributed to his driving in a manner that was dangerous to others. These circumstances will be elaborated upon below.
The defendant was interviewed by the police. He said that he was not speeding at the time. He stated that as he went to accelerate up to the speed limit of 60 km/h and changed gear, the wheels started spinning and the Lamborghini moved sideways instantly. He said he panicked as he was unable to stop the Lamborghini from sliding, even though he was applying the brakes. He denied that he deliberately caused the rear end of the Lamborghini to slide out by accelerating too hard when he changed gears. By his plea to the alternative offence the defendant accepts that he drove his Lamborghini without due care. The prosecution must exclude the defendant’s explanation for his driving and any other explanation advanced by him for the loss of control of the Lamborghini as a reasonable possibility.
The evidence relevant to the central issues
The Lamborghini Huracan
The defendant owned the 2016 Lamborghini Huracan LP 580-2 for only a number of months up to the time of the collision.[14]
[14] The original owner traded in the vehicle in February 2019: see Exhibit P16 - statement of Ilia Sarris at [6]. In his Record of Interview, the defendant stated he owned the Lamborghini for five or six months: MFI P15A at p9.
It is a powerful motor vehicle, equipped with a V10 engine, with an output of 580 horsepower. It has a top speed of 320 km/h and can accelerate from 0 to 100 km/h in 3.4 seconds.
It is a rear-wheel drive vehicle, meaning the engine propels the rear wheels.
It can be driven in either automatic or manual gear shifting mode, with automatic being the default gear shifting mode.[15]
[15] It is fitted with a 7 speed sports automatic double clutch transmission: Evidence of Eliot McDonald T 164.
It is fitted with three driver settings or modes - Strada (street), Sport and Corsa (racing). The default setting is strada and the driver must manually engage the other settings. When the engine is switched off the driving setting will revert to strada mode.
The owner’s handbook recommends that the vehicle be driven in strada driving mode for daily driving.[16]
[16] Exhibit P5 at 162.
When driven in the sport driving mode (regardless of whether the transmission is in the automatic or manual shifting mode), the vehicle is more agile, and performance is enhanced, but stability on slippery surfaces is reduced. This driving mode is therefore suited to roads with medium to high grip and allows the driver to enjoy a ‘sportier driving style with greater freedom in driving’.[17]
[17] Ibid 163.
When the Lamborghini is driven in manual gear shift mode, gear shifting is controlled by the driver using the upshift (+) and downshift (-) paddles behind the steering wheel. In sport mode, the gearbox shifts gears more quickly, compared to strada mode, when a moderate demand for torque/power is made. Upshifting is faster when the accelerator is depressed fully, and the engine is operating at high RPM. Under these conditions, the driving wheels may start to spin, especially in lower gears.[18]
[18] Ibid 164.
As with most modern vehicles the Lamborghini is fitted with an electronic stability control system (ESC), which is a safety system that automatically assists in restoring the traction of the vehicle. It is integrated with the anti-lock brake system, the anti-slip regulation system, the electronic differential lock and the electronic cross-axle traction control system.[19] When sport mode is engaged the sport mode light will illuminate on the dashboard. The ESC warning light will also illuminate when the ESC has been deactivated.
[19] Ibid at 244.
The ESC processes information from high-precision sensors which detect lateral acceleration, brake pressure, steering angle and rotational speed of the vehicle around the vertical axis (yaw rate).[20] The system recognises extreme situations that may occur during driving (such as oversteer, understeer and the drive wheels losing grip). The vehicle is stabilised by automatic targeted action on the brakes or on engine torque.[21]
[20] Ibid.
[21] Ibid.
When the sport/corsa modes are selected, the ESC and its calibration are modified to allow a ‘more sporty type of driving’.[22]
[22] Ibid 246.
The ESC can be deactivated manually by the driver.
When the ESC is deactivated and if the vehicle is being driven in sport mode, the ESC will automatically be restored if the system detects that the vehicle is losing stability.[23]
Was the Lamborghini being driven in sport mode and had the ESC been disengaged at the time of the collision?
[23] Ibid 247.
The defendant admitted in his police interview that he normally drove the Lamborghini in sport mode and with the ESC switched off.
The defendant’s digital camera, which was in the Lamborghini at the time of the collision, was seized by police.[24] It contained a number of videos taken by the defendant which the police downloaded.[25]
[24] Exhibit P6.
[25] Exbibit P7.
The videos depict footage taken on 17 June 2019 of the defendant changing the driving mode to sport, after starting the Lamborghini in his garage.
Other videos taken of the dashboard while the defendant is driving the Lamborghini to Zagame Automotive for servicing that same afternoon, show the sport mode light illuminated and the yellow light depicting that the ESC was switched off, also illuminated.
A video taken of the dashboard at 6 pm on 22 June 2019 shows the Lamborghini is being driven along Main North Road in sport mode and that the ESC has been switched off.
Another video of the dashboard shows the same features as the defendant is arriving at the Car Meet at the Marion Shopping Centre carpark.
Mr Youlden, a professional racing car driver, who gave evidence about the movement of the vehicle as tracked by the police in their reconstruction of the collision, was of the opinion that the Lamborghini was being driven in sport mode when it lost control.[26]
[26] T 260.8.
While the defendant’s counsel did not concede that the defendant was driving the Lamborghini in sport mode and with the ESC deactivated at the time of the collision, no submissions were made that this finding was not open on the evidence.
I am satisfied on the whole of the evidence that the defendant was driving the Lamborghini in sport mode, and with the ESC deactivated, as he travelled along Morphett Road before losing control of it and colliding into the girls.
Car service
The defendant took his Lamborghini in for servicing at Zagame Automotive on 17 June 2019.
The service manager, Vincenzo Francesca, stated that it was identified that the thickness of the tread on the front tyres was within ‘specs’ but was low, and that the rear tyres needed replacing.[27] It was ultimately recommended that all the tyres on the vehicle be replaced.[28]
[27] T 154.11 – 13.
[28] T 153.18 – 20.
When the defendant came to collect the Lamborghini the following day, Mr Francesca brought this to the defendant’s attention and provided a quote for the replacement and fitting of new tyres.
Mr Francesca said the defendant told him that he would attend to the replacement of the tyres himself.
The issue with the rear tyres is an important one in the trial, which will be addressed later in these reasons.
Mechanical inspection of the Lamborghini
The Lamborghini was examined by Eliot McDonald, the senior vehicle examiner at the Major Crash Investigation Section of SA Police.
He confirmed the evidence given by Mr Francesca that the rear tyres were worn down to the tread wear indicators on the tyres.
Apart from the poor condition of these tyres, Mr McDonald formed the opinion that the Lamborghini had been in reasonable condition before the collision. He did not detect anything mechanically wrong with the vehicle that would have caused or contributed to the collision.
Collision Scene
The collision scene was examined by police officers from the Major Crash Investigation Section.

Tyre and scuff marks left behind by the Lamborghini were identified and a plan was created of the collision scene by Brevet Sergeant Thiele. A series of photographs and measurements were taken from which a reconstruction of the collision was undertaken by Sergeant Fulcher.
The police were also able to identify that a unit on Bells Road, next to the T‑junction with Morphett Road, had a security camera. Footage from the camera captured the Lamborghini as it drove past the Bells Road T-junction. Utilising a series of stobie poles as markers, Sgt Fulcher was able to calculate the average speed of the Lamborghini as it travelled past the centre of the Bells Road T-junction as 53 km/h.[29]
[29] T 223 – 225.
Reconstruction Evidence
Sgt Fulcher’s expertise to express his opinions as to the cause of the collision was not challenged.
Sgt Fulcher was able to discount any excessive speed of the Lamborghini, the road surface or the weather conditions as factors contributing to the defendant losing control of the Lamborghini.[30]
[30] T 225 – 227.
It was his opinion that the most likely cause of the defendant losing control of the Lamborghini was a loss of traction of the rear wheels brought about through acceleration causing the wheels to spin and the Lamborghini to yaw or rotate around the centre of its mass.[31]
[31] T 216 – 217; 226.
Based on the security footage and the start of tyre mark T1, left on the road surface by the right rear tyre of the Lamborghini and approximately 41 metres north of the centre of the T-junction with Bells Road, Sgt Fulcher accepted that the Lamborghini would have begun to yaw at some point between the centre of the T‑junction and before the commencement of tyre mark T1, although precisely where could not be determined.[32]
[32] T 220; 223; 231 – 232.
There was evidence from the tyre markings on the road surface that indicated the Lamborghini’s brakes were being applied after it had lost control.[33]
[33] T 218 – 219.
Sgt Fulcher stated that as the Lamborghini continued to yaw, the front of the vehicle struck Sophia Naismith throwing her onto the bonnet and into the windscreen. The right-hand side of the Lamborghini struck Jordyn Callea propelling her forward.[34]
[34] T 222 – 223.
After colliding into the girls the Lamborghini continued along its path before coming to its resting position by the front doors of the Chinese restaurant.[35]
[35] T 221 – 222.
Sgt Fulcher expressed the opinion that the tyres on the vehicle were unsuitable for the prevailing weather conditions and provided insufficient traction when moderate acceleration was applied in conjunction with a gear change.[36]
[36] T 228.3 – 10.
He further explained that the tyres were ‘summer tyres’ rated to about 7°C. It was his evidence that taking account of the low temperature at the time of the collision, the coefficient of friction between the tyres and the road would be lower and consequently, it would not take a ‘stomp on the accelerator’ to cause the rear wheels to spin – moderate acceleration would likely cause them to spin.[37]
[37] T 228.26 – 36.
Sgt Fulcher agreed that travelling at a speed of 60 km/h a vehicle would travel at 16.66 metres per second. As such, from the Bells Road T-junction with Morphett Road and while travelling at that speed, the Lamborghini would have taken approximately 2.5 seconds to reach the start of tyre mark T1.[38] He accepted that as the Lamborghini started to lose control some distance before the commencement of the tyre mark, the act of acceleration that resulted in the loss of traction could have occurred about 1.5 seconds beyond the centre of the T‑junction.[39]
[38] T 229.25 – 33.
[39] Accused Address T 319.
Under cross-examination Sgt Fulcher specifically agreed that if the driver was changing from second to third gear (in sport mode), while travelling at 53 km/h and under moderate acceleration, that this may have caused the rear wheels to spin.[40]
[40] T 228.38 – 229.3.
Eyewitnesses on Morphett Road
Kerry Zerillo
On the evening of Saturday, 22 June 2019, Ms Zerillo was driving in an easterly direction along Oaklands Road.[41] She had been driving in the left lane when she noticed a white Lamborghini and a black vehicle overtake her.[42] She gave evidence that whilst the engine of the Lamborghini was extremely loud neither vehicle was speeding.[43]
[41] T 86. 11 – 21.
[42] T 86.25 – 33.
[43] T 86.37 – 88.8.
The black vehicle she described was the Mercedes being driven by Mr Podlewski.
Ms Zerillo was driving behind both the Lamborghini and the Mercedes as they turned left at a slip lane off Oaklands Road onto Morphett Road.[44] She herself made the same turn and was, in effect, following both vehicles in a northerly direction as they travelled along Morphett Road.[45]
[44] T 87.13 – 17.
[45] T 87.18 – 25.
She was driving in the left lane behind the Lamborghini, also in the left lane, while the Mercedes was being driven in the right lane. The Lamborghini and the Mercedes were travelling side by side.[46]
[46] T 87.10 – 18.
She had a clear view of both vehicles.[47] She said that they were about six car lengths ahead of her,[48] although when cross-examined she agreed that the Lamborghini and the Mercedes were approximately 100 metres in front of her.[49]
[47] T 87.27.
[48] T 88.21.
[49] T 91.10 – 20.
She stated that both vehicles were driving normally,[50] but then she noticed that they slowed down ahead of her. She said they had virtually stopped.[51] Under cross examination she clarified that both vehicles were travelling very slowly and while they may not have stopped ‘it looked like they had’[52] – ‘it was a crawl’.[53] She was not specifically asked at what point along Morphett Road the vehicles had slowed down.
[50] T 87.31.
[51] T 87.38 – 88.8; 93.4; 94.4.
[52] T 93.35 – 94.4.
[53] T 93.23.
She said that she kept watch of the vehicles because she did not know what they were doing. She recalled that she was about five or six car lengths behind the Lamborghini when she heard the noise of its engine.[54] She said the Lamborghini had revved ‘really loudly’[55] and the vehicle took off ‘really fast’.[56] She said the driver immediately lost control, with the Lamborghini swinging to the left and crashing into the bushes left of the footpath.[57]
[54] T 91.36 – 92.4.
[55] T 88.28.
[56] T 88.31.
[57] T 89.24 – 27; 92.2 – 13.
She said the Mercedes continued travelling north along Morphett Road.[58]
[58] T 92.14 – 17.
She continued driving along Morphett Road and as she drove past the Chinese restaurant, she noticed the Lamborghini was positioned at the front doors of the restaurant. The driver’s door was open, and the driver was sitting in the seat with people gathered around the vehicle.
Nathan Bennett
Mr Bennett was also driving along Morphett Road at the same time as the defendant was driving the Lamborghini in the opposite direction.
Mr Bennett had been driving in a southerly direction and in the left lane[59] on Morphett Road heading towards Marion when he noticed the Lamborghini and another vehicle, which he could not identify, travelling alongside each other heading north up Morphett Road.[60] I am satisfied that the other vehicle Mr Bennett observed was Mr Podlewski’s Mercedes.
[59] T 96.37.
[60] T 95.26 – 96.3.
Mr Bennett said he thought the drivers had been interacting with each other because both vehicles had been travelling ‘that far for that long right next to each other’.[61]
[61] T 96.18.
He said he heard the ‘loudness of [the] two cars as they went past [him], so [they] put the accelerator down’.[62] He later clarified that he was about 50 metres past them when he heard this.[63]
[62] T 96.23 – 24; T 100.22,
[63] T 96.37 – 97.1.
He said he heard the sound of the engines at the same time,[64] which is what grabbed his attention.[65] This caused him to immediately look in one of his mirrors.[66] He said he then heard the screeching sound of tyres[67] and noticed the rear brake lights[68] of the Lamborghini kick left and go off the road.[69] He said the screeching of the tyres led him to believe that the driver had done a ‘handbrake turn’ into the side street next to the Chinese restaurant.[70]
[64] T 96.25 – 29.
[65] T 96.32 – 33.
[66] T 96.30 – 31; 97.13 – 15.
[67] T 97.25; 97.36.
[68] T 97.37; T 101.19 – 22.
[69] T 97.18 – 21.
[70] T 97.26 – 32; 98.16 – 19.
Under cross-examination he agreed that as he was approaching the two vehicles travelling in a northerly direction towards him, they were loud, and they both appeared to be driving safely and at the speed limit.[71] It was not until both vehicles had passed him that he heard the revving sound of the engines, followed by the sound of the screeching tyres.[72]
Jordyn Callea
[71] T 100.7 – 22; 101.29 – 33.
[72] T 100.29 – 31
Although Ms Callea did not witness the Lamborghini being driven before she witnessed it travelling towards her and Ms Naismith, the prosecution has placed reliance upon her observations of the black Mercedes.
As she was on the footpath, she described seeing a ‘darkly coloured car’ that ‘kind of zoomed past us’.[73]
[73] T 82.2 – 4.
She was asked whether it was travelling fast and answered:
Yes. When you see something go fast and you turn your head like that (indicates), that’s the best way I can explain it, you know, our head followed the car.[74]
[74] T 82.8 – 10.
The prosecution has submitted that her evidence supports that of Ms Zerillo and Mr Bennett, namely that both vehicles were travelling side by side and that both accelerated at the same time.
The fact that both vehicles were travelling side by side at the Bells Road T‑junction is also confirmed by Sgt Fulcher, who stated that the CCTV security footage retrieved from the property on Bells Road (which he used to calculate the speed of the Lamborghini at that T-junction), depicted another vehicle travelling alongside the Lamborghini.[75]
Adam Gabrieel
[75] T 230.14 – 18.
Mr Gabrieel was the passenger in the black Mercedes Benz c63 AMG being driven by Mr Podlewski alongside the defendant’s Lamborghini as it travelled along Morphett Road.
After turning left onto Morphett Road behind the defendant’s Lamborghini, he said Mr Podlewski drove in the right-hand lane and the defendant was driving in the left-hand lane.[76] He said he did not witness any erratic driving.[77] He agreed that Mr Podlewski eventually caught up to the Lamborghini such that the Mercedes and the Lamborghini were, for a period, driving side-by-side along Morphett Road.[78] It was his evidence that he ‘waved at [the defendant] so as to say ‘how ya going’.[79]
[76] T 105.38 – 106.5
[77] T 106.7.
[78] T 106.9 – 17.
[79] T 106.24.
In contrast to Ms Zerillo’s and Mr Bennett’s evidence, he said that the defendant then slowed down to a speed below 50 km/h.[80] He thought the defendant had slowed down to wait for Mr Armstrong, who had earlier missed the turn off into Morphett Road.
[80] T 107.9.
He said that when the defendant slowed down, the Lamborghini fell back about 20 to 30 metres behind Mr Podlewski’s Mercedes. He said he did not see the Lamborghini do anything else and did not hear its engine.[81]
[81] T 107.27 – 32.
He said that Mr Podlewski’s Mercedes continued to travel at a ‘pretty constant speed’,[82] and after travelling some 100 metres past the House of Tien Restaurant he thought that he heard a bang.[83] He said Mr Podlewski asked, ‘Where’s Alex?’, and when he looked into the side mirror, he could not see the Lamborghini. He said he thought the defendant may have been waiting back for Mr Armstrong,[84] so they executed a U-turn and drove down Morphett Road and came upon the collision scene.[85]
[82] T 111.31.
[83] T 107.9 – 108.4.
[84] T 108.24.
[85] T 112.2 – 12.
When it was put to him, Mr Gabrieel denied hearing the engine of the Lamborghini and denied that the Lamborghini sped up at all.[86]
[86] T 107.32 – 108.11.
Further, his evidence was that when Mr Podlewski and the defendant were driving alongside each other on Morphett Road, neither of them accelerated.[87]
[87] T 109.35 – 110.1.
He repeated that he did not hear the sound of heavy acceleration coming from the Lamborghini.[88]
[88] T 110.5 – 7.
He denied that the two vehicles, when travelling side-by-side, slowed down to about 20 km/h as witnessed by Ms Zerillo.
His evidence remained that Mr Podlewski and the defendant had both been obeying the speed limit and that neither had driven erratically.[89]
[89] T 112.16 – 31.
Earlier driving at Elizabeth
A number of witnesses gave evidence of their observations of the defendant driving his Lamborghini through the intersection of Elizabeth Way and Main North Road at Elizabeth on the evening of 22 June 2019, when the defendant was travelling to the Winterfest Car Meet at the Marion Shopping Centre.
The defendant objected to the admission of this evidence. I ruled the evidence admissible pursuant to s 34P (2)(a) of the Evidence Act.[90]
[90] Ruling delivered ex tempore dated 14 July 2022.
The relevance of this evidence to the issues in the trial is to demonstrate the defendant’s state of mind or his knowledge of how the vehicle may have responded and the risks associated with the acceleration of the Lamborghini (while being driven in sport mode and with the ESC deactivated), albeit whilst turning across an intersection and under possibly no more than moderate acceleration, which the prosecution attributes as the explanation for why the defendant later lost control of his Lamborghini (after applying harsh acceleration) and thus was driving it in a dangerous manner when he collided into the girls on Morphett Road later that night.[91] At the very least this evidence demonstrates the slipperiness of the rear tyres fitted to the Lamborghini.
[91] Section 34R (1) of the Evidence Act.
The evidence is not being used to reason that because the defendant has driven in the manner observed by the witnesses earlier in the night at Elizabeth, he is therefore the type of person who generally drives in that manner and did so when he was driving on Morphett Road.[92]
Samantha Davidson-Bowey
[92] Ibid.
On the evening of Saturday, 22 June 2019, Ms Davidson-Bowey was stationary in her vehicle at the traffic lights at the intersection of Main North Road and Elizabeth Way.[93] She said that she was at the front of the traffic lights on Main North Road and in the left-hand lane facing north towards Gawler.[94]
[93]T 121.12 – 20.
[94] T 121.23 – 36.
She said that she observed a white Lamborghini turning from Elizabeth Way, across the intersection to travel down Main North Road towards the city.[95]
[95] T 122.13 – 21.
She described the Lamborghini as ‘driving very erratically’,[96] which she explained as the Lamborghini having ‘sped through’ the intersection in front of her. She said that as it turned onto Main North Road it lost control and fishtailed across the road.[97] By ‘fishtailing’ she explained that the vehicle moved ‘left and then right … like [the driver] was overcorrecting’.[98]
[96] T 122.30.
[97] T 122.32-34.
[98] T 122.38 – 123.1.
She said as the Lamborghini sped through the intersection, she heard a very loud sound coming from the engine.[99] She said that once the vehicle had straightened up after fishtailing, she saw it speed off again ‘really fast’ down Main North Road.[100]
Emma Anderson
[99] T 123.4 – 8.
[100] T 123.2.
Ms Anderson was also stationary at the same set of traffic lights.[101] She said that she was stopped in the middle lane on Main North Road facing towards Gawler, with Elizabeth Way to her left.[102] There was a vehicle in front of her and another to her right, while the left lane next to her was empty.[103]
[101] T 128.10 – 17.
[102] T 128.31 – 36.
[103] T 131.37 – 132.8.
While she was stationary at the intersection, she observed the Lamborghini enter the intersection and turn right onto Main North Road towards the city.[104]
[104] T 129.27 – 34.
It was Ms Anderson’s recollection that the Lamborghini entered the intersection with ‘excessive speed’[105] and that it lost control in the middle of the intersection, doing a full rotation, before ending up facing towards Gawler in the opposite direction to that which it was originally travelling.[106]
[105] T 130.23.
[106] T 129.36 – 130.3; 130.23 – 26.
She gave evidence that when the lights turned green, she could not drive off because the Lamborghini was in the middle of the intersection.[107] Under cross-examination, when it was suggested to her that the Lamborghini would not have been blocking her, she said that in any event she did not believe it would have been safe if any of the cars went forward.[108]
[107] T 130.34 – 36.
[108] T 132.30 – 35.
She said the Lamborghini then ‘really nicely just turned around’ and ‘as soon as [the driver] was facing in his direction back in his side of the lane, took off with big speed’.[109]
[109] T 130.29 – 32.
Ms Anderson’s evidence contrasts significantly with all of the other witnesses at the intersection, who essentially described the Lamborghini as ‘fishtailing’ and then correcting as it drove down Main North Road. However, when this was put to her, she said ‘[the driver] definitely was facing the wrong direction’.[110]
Robert Hay
[110] T 133.33– 37.
Mr Hay said he was driving his Holden SS Commodore sedan.[111] His daughter, Ashleigh Hay, was also in the vehicle at the time.[112] He said he was stationary at the traffic lights and was in the middle lane on Main North Road, facing north at the intersection with Elizabeth Way. He was about two or three cars back from the traffic lights.[113]
[111] T 135.11 – 14.
[112] T 135.15 – 16.
[113] T 135.17 – 32.
While waiting at the lights he heard the sound of a sports car turning right onto Main North Road from Elizabeth Way.[114] Although he did not see the Lamborghini turn the corner, his evidence was that he heard the vehicle accelerate from the lights.[115] Mr Hay made it clear that the acceleration he heard was not aggressive.[116]
[114] T 136.9 – 12.
[115] T 136.13.
[116] T 136.14.
He stated that when the Lamborghini was turning ‘it sounded like it was going a little bit quick and [the driver] backed off the accelerator and corrected himself before driving off down Main North Road normally’.[117]
[117] T 136.13 – 18.
Under cross-examination he stated that he heard ‘just like tyres, like sliding sideways on the road, like it’s not like full fishtailing, but when it just loses a little bit of traction and [the driver] overcorrected it … like the car’s gone around the corner and [the driver] quickly steered back on itself when he stepped out’.[118]
[118] T 138.6-12.
In contrast to the other witnesses that gave evidence of the defendant’s driving at that intersection, Mr Hay did not actually see the Lamborghini lose control or fishtail.[119] His evidence was that he only heard the sound of a tyre losing grip, not squealing or sliding as such.[120] He did, however, witness the Lamborghini continue driving down Main North Road in what he described as a normal manner.[121]
[119] T 136.28 – 137.3.
[120] T 137.17.
[121] T 137.30.
When asked in cross-examination whether it appeared that the Lamborghini was being driven excessively fast, Mr Hay responded that it is ‘hard to tell with the sound of [those] cars … they sound loud and fast all the time’.[122]
Ashleigh Hay
[122] T 137.31 – 35.
Ms Hay was a passenger in the back seat of her father’s vehicle. In contrast to her father’s evidence, Ms Hay said that their vehicle was in the right-hand lane of Main North Road, one vehicle behind the stop line.[123]
[123] T 139.23 – 29.
In further contrast to the evidence of her father, Ms Hay gave evidence that she saw the Lamborghini turn right from Elizabeth Way and onto Main North Road.[124] Her evidence was that she saw the Lamborghini take off ‘quite quick [but] I wouldn’t say it was anything excessive but being a quicker car, I guess it kind of got through the traffic a bit quicker than the other cars’.[125]
[124] T 140.4 – 14.
[125] T 140.17 – 20.

She said that she heard the sound of an engine revving and what she described as a ‘popping noise’[126] and then as the Lamborghini went around the corner onto Main North Road it did a ‘flick’ or a ‘fishtail’ and veered to its left.[127] She described that the Lamborghini corrected itself quickly before driving off down Main North Road.[128]
[126] T 141.26 – 27.
[127] T 140.23 – 24.
[128] T 141.28 – 32.
Under cross-examination Ms Hay agreed that there was nothing unusual about the manner the Lamborghini was being driven as it turned right from Elizabeth Way.[129]
[129] T 141.34 – 38.
In contrast to the evidence of Ms Davidson-Bowey and Ms Anderson, it was Ms Hay’s evidence that the Lamborghini turned the corner from a stationary position.[130]
Amy Morris
[130] T 142.1 – 5.
At the relevant time Ms Morris was stationary in the centre lane of Main North Road facing in a southerly direction. She was the first vehicle at the front of the traffic lights[131] and so had a clear view of the intersection.[132]
[131] T 143.38 – 144.11.
[132] T 144.10 – 11.
It was her evidence that she heard the distinct sound of the accelerator of the Lamborghini as it travelled across the intersection.[133] The Lamborghini was in the centre lane as it turned through the intersection. She said the sound of the engine was loud.[134] She noticed that the back end of the Lamborghini slid out, ‘like a fishtail’.[135]
[133] T 144.22.
[134] T 144.28.
[135] T 144.14 – 23.
She said the Lamborghini fishtailed in such a manner that it moved from the centre lane and across into the left lane.[136]
[136] T 144.37 – 145.4.
She agreed under cross-examination that when the Lamborghini turned in front of her, it appeared to be travelling at normal speed.[137]
[137] T 144.10 – 12.
The remainder of her evidence aligns with that of the majority of the other witnesses at this intersection, in that she also recalled the Lamborghini correcting following the fishtail and then accelerating down Main North Road.[138]
[138] T 144.24 – 26.
In light of the significant differences between the evidence of Ms Anderson and the other witnesses, I consider Ms Anderson’s evidence that the Lamborghini spun totally out of control and was in fact facing in the opposite direction it was travelling in, was wrong.
Upon my assessment of the evidence of the remaining witnesses I am satisfied that the defendant’s Lamborghini did ‘fishtail’ as it turned right at the intersection.
Whilst the degree of acceleration necessary to have caused the Lamborghini to behave as it did is difficult to determine on the evidence, it, nonetheless, clearly demonstrates the potential rear end handling complications of the vehicle when being driven in sport mode and with the ESC deactivated that the driver needs to be aware of.
I am satisfied from this evidence that the defendant was aware of the tendency of his Lamborghini to ‘fishtail’ when being driven in sport mode and with the ESC deactivated.
Tyre evidence
Norris Tennent gave evidence in relation to the specific tyres fitted to the Lamborghini at the time of the collision and amongst other things, the role that the tyres may have played in the defendant losing control of his Lamborghini on Morphett Road.[139]
[139] T 179.17 – 26.
Mr Tennent has an extensive work history in relation to tyre forensics and tyre footprint analysis.[140] He began working as a field engineer with Bridgestone Firestone Tyres in 2001,[141] before moving into commercial truck tyre field testing and research and development.[142] He has a vast array of experience in tyre construction, production and importantly, analysis of tyre failures.[143] He has written a manual that has been published and widely distributed in the tyre industry. The manual has been peer reviewed by other tyre technicians and experts.[144] His expertise was not challenged by the defence.
[140] T 175.8 – 13.
[141] T 175.23 – 30.
[142] T 176.1 – 3.
[143] T 176.14 – 19.
[144] T 177.17 – 178.3.
In formulating his opinion as to whether the tyres fitted on the Lamborghini at the time of the collision played any role in the vehicle’s loss of control, Mr Tennent considered a number of the driving features of the Lamborghini.[145] These included that the Lamborghini was a rear-wheel drive vehicle[146] and that it was being driven in sport mode at the time of losing control. He was also provided with photographs taken of the collision scene, a scale plan of the scene, photographs of the tyres, the relevant portions of the Lamborghini 2016 Huracan LP 580-2 owner’s handbook, the defendant’s police interview and told that the temperature at the time of the collision was about 6°C.
[145] T 179.23 – 30.
[146] In simple terms, this means that the rear wheels power the vehicle: T 179.27 – 30.
Mr Tennent was clearly familiar with the model of Lamborghini being driven by the defendant at the time of the collision. He agreed that it is fitted with a V10 engine which has approximately 580 horsepower, having a maximum power of 426 kW at 8,000 RPM.[147] He gave evidence that this specific 2016 Lamborghini Huracan has ‘a lot more horsepower than a lot of other ultra-high-performance vehicles’ because ‘it [has] a big engine in a very light automobile’.[148]
[147] T 181.6 – 13.
[148] T 181.21 – 25.
He gave evidence of the influence that a rear-wheel drive vehicle has on tyre traction stating that ‘it won’t give it [the vehicle] as much traction as an all-wheel drive and in some cases even a front wheel drive’.[149]
[149] T 182.21 – 25.
He was familiar with the different driving modes of the Lamborghini, being strada, sport and corsa.[150] He gave evidence that sport mode disables a lot of the safety features in the vehicle, allowing the driver to get the rear end of the vehicle out and sideways.[151] He said that unless a driver is well-trained, they can ‘get into some serious trouble’ when driving the vehicle in sport mode.[152]
[150] T 182.34 – 183.6.
[151] T 183.22 – 27.
[152] T 183.29 – 32.
He said that in addition, switching the ESC off has the effect of further disabling the safety features that are there to assist the vehicle regain control if it gets into a sideways shift or yaw.[153]
[153] T 184.23 – 31.
The combination of the Lamborghini being driven in sport mode and with the ESC deactivated meant that once the vehicle begins to yaw and starts to spin, there is nothing that will assist the vehicle regain control of itself other than ‘the driver’s own skill set’.[154]
[154] T 185.16 – 24.
However, under cross-examination he accepted that if the Lamborghini was being driven in sport mode and with the ESC deactivated, the ESC would automatically restore if it detected that the vehicle was losing stability.[155] He qualified this by adding that the ESC would re-activate but in a ‘reduced mode’.[156]
[155] T 203.34 – 38.
[156] T 204.1 – 7.
Having provided comprehensive evidence as to the Lamborghini itself, he was questioned about the tyres that were equipped to the vehicle, being Pirelli PO ultra-high-performance tyres.[157]
[157] T 185.30 – 32.
He said these tyres are the standard fitted tyres on a Lamborghini.
He stated that Pirelli manufacture three different categories of this tyre - summer, all season and winter - each designed with different specifications in their construction to assist them to operate at different ambient temperatures.[158]
[158] T 186.18 – 27.
The Pirelli tyres fitted to the defendant’s Lamborghini were summer tyres, designed for warmer weather conditions.[159]
[159] T 187.10 – 14.
He gave detailed evidence as to the performance capabilities of the summer tyres at temperatures below 7°C.
At temperatures below 7°C, the compounds in the summer tyre cause the rubber to become very brittle such that they no longer operate efficiently.[160] He emphasised that at temperatures below 7°C, the level of traction that the Pirelli summer tyres have with the road ‘significantly drops off’.[161] He stated that it was commonly understood in the tyre and automotive industry that these tyres should be removed and a proper designated winter tyre fitted when the temperature drops below the optimum operating temperature of the tyre, which in a summer tyre is 7°C.[162]
[160] T 186.32 – 187.4.
[161] T 187.15 – 22.
[162] T 188.22 – 35.
He said speaking from personal experience with his own high-performance vehicle, that even with all the electronics involved in keeping the vehicle safe, in cold temperatures they do not work as well because ‘ultimately the only thing that is in contact with the ground are the tyres’.[163]
[163] T 188.38 – 189.9.
He was provided with the tread measurements of each tyre taken by Mr McDonald[164] and accepted that based on those measurements the tyres were worn.[165]
[164] T 190.21 – 191.7.
[165] T 191.8 – 22.
He suggested that the centre wear pattern on the rear tyres was indicative of over inflation.[166] He said the rear tyres needed replacing and that they were about as close as they could get to being ‘slicks’.[167]
[166] T 192.11 – 17.
[167] T 193.22 – 36.
He also said that the rear tyres of the Lamborghini were not the same size as the original tyres that would have been fitted on the vehicle.[168] The rear tyres on the defendant’s Lamborghini were ‘a bit bigger and a bit wider’.[169] He said that an 11.5 inch rim was optimal for the rear tyres that were fitted on the defendant’s Lamborghini but that the rim on the vehicle was slightly smaller at 11 inches.[170] The effect of this was that the tyres were ‘pinched in a bit’, narrowing the tyre footprint and therefore reducing contact with the road surface.[171]
[168] T 192.19 – 21.
[169] T 192.21 – 22.
[170] T 192.25 – 28.
[171] T 194.7 – 195.5.
He stated because the rear tyres were slightly larger and wider, in conjunction with the slightly smaller wheel rim, that the recommended tyre pressure would not have been appropriate in this instance and that the tyre would actually require less air pressure because of its larger volume.[172] He agreed that this likely explained the over-inflation of the tyres and the uneven wear of the tread of the rear tyres.[173]
[172] T 197.21 – 198.3.
[173] T 198.4 – 7.
He was then asked as to the cumulative effect of the Lamborghini being driven in sport mode, with the ESC deactivated, subjected to sudden or harsh acceleration and with the previously identified issues with the tread of the rear tyres and their over inflation.[174]
[174] T 199.1 – 3.3.
His evidence was that under those circumstances the tyres would have played ‘100% of the role’ in the Lamborghini losing control.[175] He elaborated that under those conditions the tyres would have had no friction or traction with the road surface.[176]
[175] T 199.34.
[176] T 200.3 – 10.
He was then asked if under the same set of conditions, namely temperatures below 7°C and the vehicle being driven in sport mode with the ESC off, whether, with new summer tyres fitted, the Lamborghini would have still lost control.[177] On this point, his evidence was that summer tyres, in temperatures that low, would have only a limited amount of traction with the road.[178] He later gave evidence that at 7°C the summer tyres would lose about 50% of their traction capability.[179]
[177] T 200.18 – 22.
[178] T 200.23 – 28.
[179] T 205.16 – 20.
He stated that factoring in that the Lamborghini was being driven in sport mode and with the ESC deactivated, under sudden and harsh acceleration, the vehicle was light enough and has enough horsepower to spin the wheels causing the tyres to lose traction, even at warmer temperatures.[180]
[180] T 208.19 – 29.
Under cross-examination Mr Tennent agreed that if the vehicle was fitted with new summer tyres and was driven on a dry bitumen road at low temperatures, while travelling at 50 km/h, and was then subject to sudden moderate acceleration the tyres could have lost traction.[181]
[181] T 205.38 – 206.2.
Expert evidence as to performance of the Lamborghini Huracan
Luke Youlden is a professional racing car driver with an extensive history of racing high performance vehicles.[182] He is also an advanced driver trainer and has worked for many vehicle manufacturers around the world.[183] He is currently the deputy chief driving instructor with Porsche.[184] He holds a FIAI level C licence and also works as a motor journalist.
[182] T 238.7 – 31.
[183] T 239.22.
[184] T 239.24 – 25.
Mr Youlden gave evidence as to his experience driving Lamborghini vehicles and specifically the 2016 Lamborghini Huracan LP 580-2.[185] Under cross-examination he said that he had only driven the Lamborghini Huracan three times since 2016, in all three of the vehicle’s driving modes, and then only on racetracks.[186]
[185] T 245.30 – 246.19.
[186] T 262.23 – 234.
His experience was not seriously challenged by the defendant’s counsel, although during closing submissions the defendant’s counsel questioned the value of much of Mr Youlden’s evidence, as it was largely based on the assumption that the defendant was driving the Lamborghini in automatic gearshift when the defendant had stated in his police interview that he was changing the gears manually.
Mr Youlden gave evidence that the Lamborghini is a rear-wheel drive vehicle which makes it more prone to ‘rear-wheel skid[s]’[187] or ‘slip’.[188]
[187] T 246.22 – 27.
[188] T 248.37 – 249.1.
He agreed that there are three different modes in which the Lamborghini can be driven, namely strada, sport and corsa.[189]
[189] T 247.5 – 24.
When driven in sport or corsa modes the ESC is elevated allowing the vehicle to ‘slip a little bit more’ before the ESC is engaged.[190]
[190] T 247.10 – 15.
He said that when driven in sport mode the Lamborghini tends to oversteer or lose grip in the rear earlier, which for an experienced driver is more fun. However, and as a consequence, a driver needs more skill to be able to control the vehicle when driven in sport mode.
He said, therefore, that beyond strada mode there is more opportunity to lose traction and thus lose control of the Lamborghini, which is amplified as the defendant’s Lamborghini was a rear-wheel drive vehicle.[191]
[191] T 247.18 – 20.
He said the throttle uptake and shift time in the gearbox is influenced by what driver mode the vehicle is set at. He said that in sport mode, the Lamborghini will hold the gear in transmission longer than it would in strada mode, meaning that the gears will kick back easier and ‘rev a great deal’.[192] At a particular rate of throttle acceleration there will be increased power out of the engine in sport mode as opposed to strada mode.[193]
[192] T 250.15 – 24.
[193] T 250.29 – 35.
It was his opinion that the only safe way to drive the Lamborghini in a built‑up metropolitan area would be in strada mode.[194]
[194] T 252.16 – 19; 249.26 – 35.
When in strada mode the throttle response is dulled. The gears will change earlier to keep the revs down and not in the vehicle’s torque band. He said that strada mode keeps the vehicle as ‘docile as possible’.[195] He said that beyond strada mode the risk of too much wheel spin, and therefore loss of traction, is amplified.[196]
[195] T 249.31 – 35.
[196] T 252.23 – 29.
As he stated, in a metropolitan area there is no need to drive the vehicle ‘spiritedly’ and so it should be driven in strada mode to avoid the potential risk of losing traction.[197]
[197] T 252.23 – 29.
In relation to the ESC capabilities of the Lamborghini, he said that the only way to completely disengage the ESC was to deactivate it while the vehicle was in corsa mode.[198] If the ESC is deactivated in sport mode it will automatically re-engage if the vehicle senses a loss of control.[199]
[198] T 253.22 – 25.
[199] T 253.26 – 2 9.
He said that wheel spin in any vehicle is always ‘throttle induced’.[200]
[200] T 257.26.
He said that for the Lamborghini to lose traction in its rear wheels requires excessive throttle, such that there is too much torque or power for the condition of the road. As he explained, the more aggressive the driver is with the throttle the more aggressive the slip.[201]
[201] T 255. 1.
He said there is much less opportunity for rear-wheel slip if the driver is only ‘ramping up the throttle slowly’.[202]
[202] T 255.1 – 13.
When the Lamborghini is driven in automatic gearshift and in sport or corsa mode, the vehicle will downshift rapidly in response to a gear change, and it will reach the optimum ramp and gear as quickly as it can.[203]
[203] T 255.35 – 256.2.
He agreed with the proposition that while in sport mode if the driver applies sudden or harsh throttle input and manually shifts to a higher gear, that could contribute to the vehicle losing control because ‘you’ve got a momentary loss of traction, momentary loss of engagement from the engine to the axle and in that time, anything can happen’.[204]
[204] T 257.12 – 18.
When questioned as to the sound of the Lamborghini’s engine, he said the engine is generally louder in sport and corsa modes than when in strada mode because the change of mode opens up the baffles in the exhaust.[205] He added that ‘you don’t need to be hard on the throttle to experience the shift in noise’.[206]
[205] T 257.28 – 32.
[206] T 258 16 – 18.
Based on an aerial photograph depicting the Lamborghini’s line of travel approaching the collision scene[207] and on the assumption that it was being driven on a straight stretch of road at about 53 km/h when the driver accelerated and changed gear, it was his opinion that the defendant must have been driving the vehicle in ‘sport mode at the very least’.[208] He added that in strada mode, hard acceleration would cut the engine quickly and so the vehicle would have had to be in a different mode to lose rear wheel traction and slip in the manner that it did.[209]
[207] Exhibit P21.
[208] T 260.8.
[209] T 260.10 – 19.
Further, to achieve that kind of loss of control, he said the Lamborghini would need to have been subjected to ‘excessive throttle ramp’.[210] As he explained, ‘cars, just do not drive down the road at 53 km/h and then turn left, it has to respond to an input … the only way it can turn left like that is to get on the gas excessively’.[211]
[210] T 261.13 – 16.
[211] T 261.18 – 25.
He rejected the suggestion that had the Lamborghini been driven in strada mode and subjected to moderate acceleration it could still have lost control in the way that it did.[212] He said that if the Lamborghini was being driven in sport mode and subjected to moderate acceleration, that would not account for the wheel spin and subsequent loss of control as there would need to be ‘a reasonable ramp on the throttle regardless of the mode’.[213]
[212] T 261.30 – 36.
[213] T 261.38 – 262.9.
However, under cross-examination he appeared to contradict himself and agreed that it was a possibility that the Lamborghini may have lost control under the conditions that it was around 7°C and the car had only been subject to moderate acceleration while in sport mode, seemingly contradicting his earlier evidence.[214]
[214] T 265.28 – 34.
He was asked specifically as to the performance of the vehicle when it is equipped with Pirelli summer tyres and driven at temperatures below 7°C[215] and stated that he had never driven the Lamborghini with the relevant tyres at those temperatures.[216]
[215] T 264.27 – 265.9.
[216] T 265.7 – 9.
The defendant’s statements and police interview
When the owner of the House of Tien Chinese Restaurant confronted the defendant after the collision, the defendant stated that he ‘was only doing 60[km/h] and [he did] not know how [he] lost control’.[217]
[217] Statement of Kiet Chi Tran (Exhibit P8) at [14].
The defendant was conveyed to the Flinders Medical Centre by police to have a blood sample taken for later analysis.[218]
[218] The blood sample was found not to contain any alcohol or illicit substances: Agreed Fact 2.
While still at the hospital the defendant was interviewed by Detective Senior Sergeant David Gordge.[219]
[219] P15. The transcript of the police interview is MFI P15A.

The defendant was in an obviously distressed state throughout the interview.
He admitted being the driver of the Lamborghini at the time of the collision and said his wife was a passenger in the vehicle.
He stated his friend Simon Podlewski was driving a Mercedes Benz along Morphett Road at the same time.
He denied that they were racing.[220]
[220] MFI P15A at 4.21 – 22.
When asked to explain what happened, he stated:
I was just driving along that road. I believe I was below the speed limit to be honest to start with, and I went, I don’t even know what happened really. I just, I was in, I normally drive in a lower gear in the car, and I don’t know and then I went up another gear and as soon as I changed the other gear the car just went like completely around and I don’t even know what happened like it was so fast.[221]
[221] Ibid at 4.10 – 16
When asked if he was accelerating at the time he stated:
I didn’t accelerate hard. Like yeah, I was accelerating up back up to speed and then like I went to change the gear and it just went around. Like it was so fast, like I literally just didn’t even, didn’t even, couldn’t even stop it. Like I didn’t even know what, then I just panicked and like I just panicked, and it just went straight up the kerb, and I don’t even know, I don’t even know, I just panicked, and I couldn’t stop it. I had my foot on the brake and that was it and it just kept sliding …[222]
[222] Ibid 4.20 – 28
The defendant stated that he was not speeding and when asked what caused the vehicle to pull off and head onto the footpath he stated:
I didn’t pull off. I didn’t pull off at all. As soon as the car went out it just went out completely … I didn’t pull it off … I didn’t turn it.
It just … lost traction and that was it. I couldn’t stop it, I couldn’t stop it at all. That’s all it did, it just completely pulled the steering wheel and it just shot left and then … I panicked, and I slammed on the brakes. I didn’t do anything. I couldn’t correct [it]. I couldn’t do anything. As soon as I put on the brakes, I don’t know it … took like two seconds and then I couldn’t do anything, I don’t know … if I panicked but I just pushed the brakes and that was it and then it went …[223]
[223] Ibid 5.23 – 6.3.
When asked whether he swerved because of the Mercedes Benz in the other lane or anything similar, the defendant responded:
No, I didn’t … there was no need to, he wasn’t doing anything … I don’t even think he was there; he was just like coming up next to me, that was it … He didn’t pull into my lane. He didn’t do anything … I didn’t turn the car at all.
I lost traction at the back because it’s not a four-wheel drive, it’s a rear wheel drive … and its worse when it’s cold, like I literally come from the sitting …[224]
[224] Ibid 6.8 – 28.
The defendant explained that he had just left a ‘Show and Shine’ event at the Marion Shopping Centre, where the vehicle had been parked for some hours.
He reiterated that when he went to accelerate and change gear the vehicle started spinning.[225]
It didn’t even spin much. Like it literally threw me. It threw me sideways before it did anything. It just threw me sideways instantly. I didn’t even do anything. It just spun and the wheel pulled and that was it, I couldn’t stop it ... It’s like as soon as I was on the brakes it just didn’t respond at all … it just threw me that’s all it did. It just threw me into the kerb, and I didn’t even remember even hitting the kerb … I just remember … they were there, and I couldn’t stop it.[226]
[225] Ibid 8.9.
[226] Ibid 8.11 – 25.
When it was suggested that for a vehicle to behave as the Lamborghini did was due to harsh acceleration or speed, the defendant responded:
No, because I don’t. I normally put it in … sport mode and the traction control isn’t on when I drive it.
We weren’t being stupid … It’s just, it’s a powerful car and it’s not like a normal car. It's going to sound dumb … you don’t have to think anything in that car. Like I was literally coming around the corner the other day and it was cold tyres and the thing, it just slipped out and you can’t stop it … It’s not even losing traction … It’s weird. I don’t know how to explain it … It’s like it’s not under acceleration … it’s when the tyres are cold.[227]
[227] Ibid 10.5 – 28.
When it was also suggested that he could have accelerated too hard when he changed gears and that was the reason the rear end of the Lamborghini slid out, the defendant responded:
It didn’t feel like I did anything stupid, like nothing out of the ordinary …[228]
[228] Ibid 10.38.
When asked if there was anything further that he wished to state the defendant said:
I’m sorry. I didn’t do anything stupid, and I didn’t mean for this to happen. I’m not a bad person.[229]
[229] Ibid 13.26 – 31.
Dangerous driving
As earlier stated, the defendant has admitted that he was driving without due care when his Lamborghini collided into the two girls.
Such driving occurs whenever there is a departure from the standard of care expected of a reasonably prudent driver in the position of the defendant as appropriate to the circumstances.[230]
[230] Police v Melisi (2010) 106 SASR 105.
To prove that the defendant drove his Lamborghini in a manner which was dangerous to any person, upon which the primary charges are based, the prosecution must show that the driving involved was such a grave departure from the standard of care expected of a driver and that it imposed a risk, which any reasonable person in the position of the defendant, would recognise or appreciate was dangerous.
In R v Coventry,[231] the Court of Criminal Appeal stated:
The fact to be proved in this case was that the defendant was driving in a manner which was dangerous to the public, and if it is necessary to attempt a definition we should say that driving in a manner dangerous to the public means the act of driving in a manner which any ordinary person (in the situation of the driver) would recognize as dangerous, in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road–the commonplace incidents of the use of the highway in question under the conditions of modern transport by fast-moving vehicles.[232]
[231] (1938) SASR 79.
[232] Ibid 86.
The Court went on and stated:^[233]
Any departure from the full standard of reasonable care, however transitory, and however slight the risk may be, is properly described as negligence. It is desirable to point out that the most careful and skilful of drivers may allow his attention to wander, or do a foolish thing through inadvertence, and that this may be "blameworthy"; but, men being what they are, negligence of this kind is, more or less, on a par with pure misadventure. It is a fair risk of the road¾in so far as ordinary people are frequently careless, and very few are always careful. The charge of driving to the danger of the public involves more than this. It implies conduct which is open to grave censure as involving the plain threat of serious injury to other people.
[233] Ibid 87.
On appeal to the High Court, the majority observed:[234]
It is, in our opinion, wrong to exclude an act or omission from ‘manner of driving’ because it is casual or transitory in some senses in which these somewhat flexible words may be understood. Such an exclusion may even suggest that carelessness or inattention may constitute a defence to a charge under the relevant provision of the section. Sudden, even though mistaken, action in a critical situation may not, in all the circumstances of a case, constitute driving to the danger of the public. But casual behaviour on the roads and momentary lapses of attention, if they result in danger to the public, are not outside the prohibition of that provision merely because they are casual or momentary. Further, ‘manner of driving’ includes, in our opinion, all matters connected with the management and control of a car by a driver when it is being driven. It includes starting and stopping, signalling or failing to signal, and sounding a warning or failing to sound a warning, as well as other matters affecting the speed at which and the course in which the car is driven.
[234] R v Coventry (1938) 59 CLR 633 at 638 – 639.
In a separate judgement, Starke J stated:[235]
The offence is established if it be proved that the acts of the driver create a danger, real or potential, to the public. Advertence to the danger on the part of the driver is not essential; all that is essential is proof that the acts of the driver constitute danger, real or potential, to the public. But whether such danger exists depends upon all the circumstances of the case, e.g., the character and condition of the roadway, the amount and nature of the traffic that might be expected, the speed of the motor vehicle, the observance of traffic signals, the condition of the driver's car, especially if he knew, for instance, that his brakes were out of order and so forth. Substantially, the judgment on appeal accords with this view. “Upon a charge of driving at a speed or in a manner which is dangerous to the public the prosecution is not so much concerned with the state of the defendant's mind as with his conduct. The essence of this charge is the objective fact—the risk of injury to others.” And, citing McCrone v. Riding: “That standard is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway” (See Andrews v. Director of Public Prosecutions; Kingman v. Seager). [citations omitted]
[235] Ibid at 639.
In R v Kamleh,[236] King CJ stated:
The question is not whether the accused intended to drive, or appreciated that he was driving, in a manner dangerous to the public but whether, in the judgment of the jury, a reasonable person in the situation of the driver would have appreciated that he was driving in a manner dangerous to the public.
The crime is committed by the act of driving in a manner which any reasonable person in the situation of the driver would recognise as dangerous in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public. Ordinary risks of the road include those arising from the sort of faulty driving and lack of care which must be expected, due to human frailty, from time to time, from the ordinary driver. The sort of driving which constitutes this crime is more serious than that. It is driving which a reasonable person in the situation of the driver would understand to be such as would give rise to a serious risk of injury to members of the public going beyond the ordinary risks of the road.
[236] (1990) 51 A Crim R 435 at 434.
Furthermore, the manner of driving must be so serious as to amount to an actual, rather than a speculative, danger to other persons.
In McBride v R,[237] Barwick CJ stated:
The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.
[237] (1966) 115 CLR 44 at 49 – 50.
In Jiminez v R,[238] the majority of High Court stated:
The manner of driving encompasses "all matters connected with the management and control of a car by a driver when it is being driven". For the driving to be dangerous for the purposes of s 52A there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention.
[238] (1992) 173 CLR 572 at 579.
Finally in R v Kroon,[239] White J observed:
The Solicitor-General, Mr Doyle QC, conceded that Virgo v Elding had not been correctly decided. He acknowledged that liability under s 19a is not absolute in the sense that the person behind the wheel is not liable to conviction “come what may” even though the dangerousness of the driving has been proved objectively. Objectively assessed dangerous driving may have resulted from a driver's sudden and unexpected loss of consciousness or from some illness of which he or she had no prior warning whatsoever; or he or she might have lost control through some structural defect in the steering or brakes of a well-kept well-serviced car. These instances of apparent dangerous driving due to circumstances beyond the control or awareness of a driver are not acts of dangerous driving within the meaning of s 19a. In my opinion, s 19a must be construed so as to include an element of personal responsibility on the part of the accused for what happened. That responsibility could arise out of a prior actual awareness that the dangerous event, which did in fact happen, might well happen or it might arise from a reckless disregard for the risk or potential that the event might happen. See, for example, R v Spurge [1961] 2 QB 205 (a decision of a special Court of Five consisting of Lord Parker CJ and Hilbery, Gorman, Salmon and Stevenson JJ) where the driver knew that his car had a tendency to pull to its right when the brakes were applied. He was charged with dangerous driving after a vigorous application of his brakes pulled his car on to the wrong side of the road causing it to collide with an oncoming vehicle. It was held that it was dangerous for the driver to have driven his car with the knowledge which he possessed and therefore his defence to the charge of dangerous driving was not made out and he was rightly convicted. What was significant was the state of his mind prior to the occurrence of the event. His driving was dangerous all of the time that he was driving because he was aware, or should have been aware, that the very kind of thing that did happen might happen. The dangerous manner of the driving is not confined to the agony of the emergency but relates back to events and knowledge (or recklessness) leading up to the emergency: cf Watt v Bretag(1982) 56 ALJR 760.
[239] (1991) 55 SASR 476 at 490.
In the foregoing passages both the High Court in Coventry and White J in Kroon, considered that when assessing whether driving is dangerous, regard may be had to the driver’s awareness of the potential dangers involved from particular tendencies or deficiencies in the vehicle being driven.
The prosecution places reliance on these observations in submitting that the defendant was aware of the risk involved in driving his vehicle when in sport mode with the ESC deactivated and when the weather is cold, as informing whether the manner of his driving, in the sense that he applied harsh acceleration to his powerful vehicle, was dangerous in the circumstances of this case.
The following propositions emerge from the cases that are applicable to this trial:
1.The relevant question is whether a reasonable person in the situation of the driver would have appreciated that he or she was driving in a manner dangerous to any person. This is an objective enquiry. Questions of intention to drive in a manner dangerous or subjective appreciation of driving in such a manner are not the relevant considerations.
2.The acts of the driver must constitute a real or potential danger to another person. The danger must be some risk over and above that which is ordinarily associated with the driving of a motor vehicle.
3.Casual, or even momentary, lapses of attention may be sufficient to prove dangerous driving, depending on the circumstances.
4.The manner of driving constitutes all matters connected with the management and control of the vehicle, including any known defects or tendencies of the vehicle which are inherently dangerous, such as defective brakes.
How the prosecution case was presented
The prosecution has presented a very specific case in seeking to prove that the defendant drove in a dangerous manner.
The prosecution is neither contending that the defendant was driving at excessive speed or that he was engaged in or about to commence a street race with Mr Podlewski’s Mercedes, alongside which he had been travelling at the relevant time.
The prosecution case is confined to the defendant’s manner of acceleration while travelling at a speed of 53 km/h seconds before the collision.
The prosecution case is that while travelling at that speed, the defendant has applied sudden and harsh acceleration,[240] which has caused his rear-wheel drive Lamborghini to slide out of control.
[240] Prosecution Opening Address: T 26.3; 26.10; 27.5; 28.23; 29.15; 29.35 – 30.2; 33.14; 33.26 – 27. Prosecution Closing Address: T 270.22 – 25; 270.32; 270.36; 273.35 – 276.11; 276.37; 277.9 – 23; 279.18; 280.31; 305.4; 305.33.
It was submitted by the prosecution that an act of sudden and harsh acceleration of such a powerful vehicle, while it was being driven in sport mode, with the ESC deactivated, with tyres that the driver knew did not perform under cold conditions, and with the further knowledge the vehicle had ‘fishtailed’ when being driven in sport mode and with the ESC deactivated earlier that evening, amounts to driving it in a manner which is dangerous.
The prosecution has not presented its case on the basis that with the attendant handling issues connected to the Lamborghini being driven in sport mode and with the ESC deactivated, which were known or ought to have been known by the defendant, that the defendant’s application of moderate acceleration resulting in him losing control of the vehicle, amounted to driving in a manner which is dangerous and so need not be considered by the court. The question in that situation would not be about the alleged harsh acceleration in the moment but involve a consideration of the combination of all other factors associated with the vehicle when driven in sport mode, with the ESC deactivated and with the risks as known to the defendant. However, that was not the case the defendant had to meet in this trial.
The prosecution has therefore sought to prove its case by proving beyond reasonable doubt that there was sudden and harsh acceleration of the Lamborghini by the defendant which was objectively dangerous in the circumstances described above.
Analysis
The devastation of the consequences of the defendant’s driving must not be understated. However, it must not influence the critical qualitative assessment of the driving itself that must be determined on the evidence in this case.
In considering whether the defendant was driving in a dangerous manner, regard may be had to all of the circumstances. This includes, in my view, the nature and condition of the particular vehicle being driven, the varying handling capabilities of the vehicle if different driver modes are available and any peculiarities associated with driving the vehicle which are known or should be known by the driver. This is true, of course, for driving without due care.
I am satisfied that the defendant was acutely aware that he was driving a powerful vehicle. In his police interview he said that he had very recently experienced handling problems with the Lamborghini slipping out and being unable to stop it when the tyres were cold.
I am also satisfied from the evidence of the various witnesses who had observed or heard the defendant turning onto Main North Road from Elizabeth Way earlier in the evening, that the rear end ‘fishtailed’ under cornering. At the very least, from that driving experience, the defendant would have been aware of the slippery nature of the rear tyres.
The defendant was also specifically made aware, only days earlier, that the tyres were in need of replacement.
As such, I accept the prosecution submission that the defendant was aware of the handling risks associated with driving the Lamborghini in sport mode, with the ESC deactivated and in cold conditions. However, in light of the extensive evidence of Mr Tennent, it is difficult to quantify the extent of the defendant’s knowledge of the performance of the tyres.

This is a vehicle which Lamborghini itself recommends should be driven in strada mode for daily driving and this was also the opinion expressed by Mr Youlden.
While it is accepted that it is not illegal to drive the Lamborghini in sport mode, as I have found the defendant did that night, the handling issues, of which the defendant was aware or ought to have been aware, meant that extra care should have been taken by him when driving it in that mode and particularly so with the ESC deactivated, and in cold conditions, and further, that no manoeuvres should be attempted, particularly under excessive acceleration, that could manifest in a loss of traction in the rear wheels.
While driver input was no doubt the cause of the Lamborghini losing control, the central issue to the trial has evolved as to whether the defendant deliberately applied harsh acceleration causing the vehicle to lose control, such that he was driving it in a dangerous manner.
The prosecution sought to prove the alleged act of harsh acceleration essentially on the evidence of three eyewitnesses – Ms Zerillo, Mr Bennett and Ms Callea - as supported or supplemented by the evidence of three expert witnesses - Sgt Fulcher, Mr Tennent and Mr Youlden.
I have already summarised each of those witnesses’ evidence in detail.
While Ms Zerillo said that she heard the noise of the Lamborghini’s engine and that it had revved ‘really loudly’ and took off ‘really fast’, she did so at night and from a distance of five or six car lengths behind the Lamborghini. When cross-examined she agreed that the Lamborghini and the Mercedes were approximately 100 metres in front of her.
Naturally, those observations were her impressions and are limited by her position behind the vehicles being driven some distance ahead.
It is acknowledged that the Lamborghini is a very loud sounding vehicle, and even more so when it is driven in sport mode.
Accepting that Ms Zerillo did hear the engine revving really loudly, it does not necessarily follow from that that it was accelerating harshly or excessively at the time because of the sound the Lamborghini’s engine produces.
As Mr Hay observed during his evidence when questioned as to the amount of acceleration of the Lamborghini he heard, it is ‘hard to tell with the sound of [those] cars … they sound loud and fast all the time’.
Mr Youlden also stated in his evidence that the Lamborghini is a loud sounding vehicle and even more so when it is being driven in sport mode. He stated that the driver of the vehicle does not have to be hard on the throttle to experience the shift in noise from strada to sport mode.[241]
[241] T 258.11 – 18.
Another difficulty raised on Ms Zerillo’s evidence is that the defendant overtook her on Oaklands Road, and her observation was that the Lamborghini sounded extremely loud, even though it was not speeding.
This makes it unclear whether the defendant’s acceleration on Morphett Road was harsh as she heard, or whether the sound she heard was attributed to a different level of acceleration in combination with the general loudness of the engine.
As such, it may be difficult, as Mr Hay observed, to distinguish actual harsh acceleration from the sound of moderate acceleration of the Lamborghini, which may sound fast or hard.
Compounding this difficulty is that the combined sound of the engines of two vehicles, as they were travelling alongside each other, would make it hard to distinguish how much of the sound of the acceleration could be attributed solely to the Lamborghini.
As for Ms Zerillo’s observation that the Lamborghini took off ‘really fast’, again that may be difficult to judge from her position some distance behind the vehicle.
In making that observation as to the speed of the Lamborghini, she also stated that the driver immediately lost control, with the vehicle swinging to the left and crashing into the bushes on the left of the footpath. There is a certain contradiction in describing a vehicle as ‘taking off really fast’ and ‘instantly losing control’.
This is not a case where Ms Zerillo has observed the vehicle travelling at excessive speed over any distance at all. Had that been so then the case for driving in a dangerous manner would have been strengthened.
Indeed, on the collision reconstruction evidence given by Sgt Fulcher, the Lamborghini had lost control somewhere between the Bell Road T-junction, when it was travelling at 53 km/h and at a point before the commencement of tyre mark T1, which was only 41 metres from the centre of the T-junction. This clearly suggests that it lost control in a very short time and over a very short distance.
Ms Zerillo’s observation of the Lamborghini losing control immediately upon acceleration is consistent with Sgt Fulcher’s evidence and is in fact what the defendant himself stated he experienced when he went to accelerate up to the speed limit, changed up a gear and instantly lost control.
It was submitted by defence counsel that if the vehicle was subjected to harsh acceleration, then tyre marks prior to the commencement of tyre mark T1 (by which stage the Lamborghini was already rotating), would have been expected.[242] Simply put, as there was no evidence of tyre markings prior to tyre mark T1, defence counsel contended that the Lamborghini was not subjected to harsh acceleration. The difficulty with the submission is that none of the expert witnesses were asked any questions on this topic, and as such, I am not in a position to make a finding whether tyre marks would be expected to have been left on the road surface had there been harsh acceleration applied to the Lamborghini before it lost control.
[242] T 312.23 – 31.
While the police were able to estimate the speed of the Lamborghini at the Bells Road T-junction, it was not possible to calculate its speed seconds later when it collided into the girls.
The ability of Ms Zerrillo and Mr Bennett to give evidence of the speed at which the Lamborghini was travelling was naturally limited by their positions in their respective vehicles and in the circumstances each described. Neither viewed the Lamborghini travelling side on nor being overtaken by it at the relevant time, from which they would have been able to provide an estimate of its speed. Indeed, Mr Bennett’s evidence was that the Lamborghini and Mercedes were both travelling within the speed limit as they passed him only seconds before the Lamborghini lost control.
The reliability of what Ms Zerillo heard and observed was challenged by the defendant’s counsel.
Ms Zerillo claimed that the Lamborghini and Mercedes slowed down ahead of her. She said in her evidence that the two vehicles had virtually stopped. Under cross examination she clarified that both vehicles were travelling very slowly and while they may not have stopped ‘it looked like they had … it was a crawl’.
Mr Bennett, who was driving his vehicle in the opposite direction at the time, did not suggest the two vehicles approaching him were travelling slowly, let alone at a speed where they had virtually come to a stop.
From the CCTV footage obtained from the security camera at the property on Bells Road, Sgt Fulcher was able to calculate the average speed of the Lamborghini as it was driven through the centre of the T-junction as 53 km/h, which also contradicts Ms Zerillo’s evidence as to the speed both vehicles were travelling at before she heard the Lamborghini’s engine revving really loudly.
It was Mr Bennett’s evidence that the two vehicles had been travelling alongside each other. He said that he thought the drivers had been interacting with each other because both vehicles had been travelling ‘that far, for that long, right next to each other’.
He stated that as the two vehicles travelled towards him, they sounded loud, and they both appeared to be driving safely and within the speed limit. Again, this accords with the evidence of Mr Youlden, in that even absent excessive acceleration, the vehicle was still audibly loud.
Mr Bennett’s description of the driving of the two vehicles differs significantly from Ms Zerillo’s evidence that they had slowed right down before both drivers accelerated, and her evidence on this point is further contradicted by the CCTV footage and Sgt Fulcher’s calculation of the speed at the Bells Road T‑junction.
Mr Bennett said that it was not until both vehicles had passed him that he heard the revving sound of both engines, followed by the sound of screeching tyres. He clarified that the vehicles had travelled about 50 metres behind him when he heard those things.
This caused him to immediately look in one of his mirrors when he noticed the rear brake lights of the Lamborghini kick left and go off the road.
For the reasons earlier mentioned involving the sound of the Lamborghini’s engine when being driven in sport mode, it is difficult to assess whether the acceleration was ‘harsh’ based on what Mr Bennett has described hearing only after the vehicles had driven past him.
Similarly, what Ms Zerillo said she observed and heard from some distance behind the Lamborghini, does not, in my view, exclude as a reasonable possibility that the acceleration was not, in fact, ‘harsh’.
Ms Callea stated in her evidence that as she and Ms Naismith were walking along the footpath in front of the Chinese restaurant, she noticed what was the black Mercedes being driven by Mr Podlewski ‘kind of zoom past us’.
The prosecution has submitted that this supports the evidence of Ms Zerillo and Mr Bennett, that both vehicles were travelling side by side and that both accelerated at the same time.
Ms Callea’s observation of the Mercedes was obviously only fleeting. Furthermore, her evidence as to the speed of the Mercedes cannot, however, be indicative of the speed of the Lamborghini, especially given that the prosecution case was not that both vehicles were involved in a race.
Furthermore, Ms Callea did not give any evidence of hearing the roar of engines or the sound of acceleration, and she was not very far from the Bells Road T‑junction at the time.
It is difficult therefore to make an assessment of the degree of acceleration of the Lamborghini on her evidence.
Despite calling him as a witness, the prosecution has placed no reliance upon the evidence of Mr Gabrieel, who stated that when Mr Podlewski and the defendant were driving alongside each other on Morphett Road, neither of them accelerated.
Mr Gabrieel also said in his evidence that he did not hear the sound of heavy acceleration coming from the Lamborghini. He specifically denied that the two vehicles slowed down as witnessed by Ms Zerillo.
His evidence remained that Mr Podlewski and the defendant had both been obeying the speed limit and neither had driven erratically.
The basis upon which the prosecution submitted that Mr Gabrieel’s evidence was unreliable and should not be accepted, was that being a friend of the defendant he was ‘partial’ toward him; his evidence was ‘vague’ in relation to the defendant’s vehicle slowing down; and that his evidence bore ‘no resemblance to the accounts’ given by Ms Zerillo, Mr Bennett and Ms Callea, including that he deliberately omitted any acceleration of the vehicle, as each of those witnesses stated in their evidence.[243]
[243] Prosecution Address: T 281 – 283. The duty of a prosecutor whether to call a witness is well established: Richardson v R (1974) 131 CLR 116; Whitehorn v R (1983) 125 CLR 657; R v Apostolides (1984) 154 CLR 563; Dyers v R (2002) 210 CLR 285; R v M, RS [2018] SASCFC 37. There is no rule prohibiting a prosecutor from submitting that a court should disbelieve portions of a prosecution witness’ evidence which are not consistent with the guilt of the defendant: R v Colquhoun [2009] SASC 138; R v Macfie (No 2) (2004) 11 VR 215; R v Mark [2006] VSCA 251; R v Gonclaves (1997) 99 A Crim R 193.
In reality, however, the prosecution was inviting the court to reject Mr Gabrieel’s evidence because it was untruthful. As he was not cross-examined upon his credit, I have found it difficult to make the finding contended for by the prosecution.
I am not prepared to dismiss Mr Gabrieel’s evidence as easily as the prosecution submitted.
Whilst Mr Gabrieel was a friend of Mr Podlewski, he had not met the defendant before that night.[244] There was nothing which was inherently internally inconsistent or unreliable in the evidence he gave. While I note the differences between his evidence and that of the other witnesses, I cannot completely discount what he said. His evidence does undermine the prosecution case that the defendant applied harsh acceleration to his Lamborghini.
[244] T 103.6 – 26.
In his police interview, while the defendant admitted accelerating to the speed limit, he denied that his acceleration was ‘hard’.
The prosecution submitted that the course of travel of the Lamborghini and the point at which it came to rest are consistent with harsh acceleration and that this is supported by the evidence of Sgt Fulcher and Mr Youlden, that a vehicle travelling at 53 km/h in a straight line would not have lost control without significant driver input.
There is difficulty in accepting the prosecution position. First, there is no evidence of the speed at which the Lamborghini was travelling at the point of the collision. Secondly, as mentioned, each of Sgt Fulcher, Mr Tennent and Mr Youlden agreed that it was possible that the defendant could have lost control of his Lamborghini while travelling at 53 km/h, in sport mode and then accelerating moderately while changing up a gear.
It can be accepted that while the rear tyres on the defendant’s Lamborghini needed replacing, the real issue with the loss of traction in the tyres was that even upon moderate acceleration, the tyres fitted to the Lamborghini, being summer tyres, were no longer efficient because the ambient temperature had fallen to below 7°C.
While there is evidence to show that the defendant was made aware, only four days earlier, that the tyres needed replacing, there is no evidence to prove that he was aware that the tyres fitted to his Lamborghini were summer tyres that were not suitable for use below 7°C; that the rear tyres were bigger and larger than recommended for the rim size of the wheels resulting in them pinching in; and that they were overinflated. Indeed, there is no evidence to prove that the defendant was even aware that the temperature at the time of the collision was below 7°C, other than it was a cold night.
The defendant did however, state in his record of interview that losing traction at the back of the Lamborghini was worse when the tyres are cold. It was a cold night and the defendant’s Lamborghini was parked over a number of hours at an undercover but open carpark at the Marion Shopping Centre.
I am satisfied on the evidence that the defendant would have appreciated that it was a cold night, and further, that he knew, from past driving experience, the handling difficulties of the Lamborghini when the tyres are cold, such that he should have taken care when driving and especially when accelerating under those conditions.
It was Mr Tennent’s opinion that when the temperature falls to below 7°C, and in this case at 9.45 pm the temperature had dropped to somewhere between 6.2°C and 4.9°C, once the rear wheels began to spin, the summer tyres fitted to the Lamborghini would have played ‘100% of the role’ in the vehicle losing control after that. He elaborated that under those conditions the tyres would have no friction or traction with the road surface.
It was also Sgt Fulcher’s evidence that the tyres on the Lamborghini were unsuitable for the prevailing weather conditions and would provide insufficient traction when moderate acceleration was applied in conjunction with a gear change. As he expressed, it would, therefore, not take a ‘stomp on the accelerator’ to get the wheels to spin – some moderate acceleration would likely cause them to spin.
He specifically agreed under cross-examination that if the driver was changing from second to third gear, while travelling at 53 km/h, under a moderate acceleration, that may cause the wheels to spin.
Both Mr Tennent and Mr Youlden agreed that this proposition was a possibility.
Mr Youlden specifically suggested that a manual shift to a higher gear, while in sport mode could provide an opportunity for the rear wheels to slip once the vehicle engaged in the next gear. I note that this is the explanation which the defendant provided in his police interview.
While Mr Youlden qualified that this is always throttle induced, it nonetheless follows that Ms Zerillo’s observations may well have been of the vehicle losing control in response to a gear change under moderate acceleration.
Mr Tennent agreed that even if the Lamborghini was fitted with new summer tyres and was driven on a dry bitumen road, while travelling at 50 km/h, and was then subject to sudden ‘moderate’ acceleration (while being driven in sport mode) it could still have lost traction.
Mr Youlden initially stated in his evidence that the Lamborghini must have been subjected to ‘excessive throttle’ to have lost control in the manner that it did. However, he conceded, under cross-examination, that it was a possibility the Lamborghini may have lost control under the conditions that it was around 7°C and the car had only been subject to moderate acceleration while being driven in sport mode.[245]
[245] T 265.28 – 34.
In re-examination Mr Youlden qualified that ‘moderate’ was an undefined term and in his opinion, clearly the acceleration was ‘excessive for the conditions’.[246]
[246] T 253.30 – 36.
However, in light of Mr Tennent’s evidence, the conditions could well have provided for a loss of control in the absence of harsh acceleration.
For this reason, it also does not necessarily follow that the capacity of the tyres to function in temperatures below 7°C is only enlivened after the vehicle has lost control. The tyre’s capacity to function below 7°C, with a reduced footprint due to conditions earlier stated, is directly relevant to the amount of acceleration required to overcome the tyre’s traction with the road.
A difficulty I have found in the way the case was presented is in determining whether by harshly accelerating, the defendant was driving in a manner dangerous, is that the categorisation of the acceleration as harsh or moderate, as utilised in the trial, is somewhat artificial.
Harsh acceleration connotes acceleration which is well beyond the usual incident of driving. On the other hand, moderate suggests only average intensity of acceleration.
However, in this case there was no measurement of the acceleration beyond the descriptions given by the witnesses, as put to them by counsel. Yet that is how the case was presented by the prosecution and in turn defended.
Conclusion
Based upon my assessment of all the evidence, I am unable to form a conclusion whether the acceleration was harsh or something less, such as moderate (as was accepted by the expert witnesses to have been a possibility) in explaining the loss of traction of the tyres on the rear wheels of the Lamborghini, which was in turn why the defendant lost control.
For all the above reasons, I am not satisfied beyond a reasonable doubt that the evidence establishes the defendant applied harsh acceleration as contended by the prosecution.
Put another way, the prosecution has not excluded as a reasonable possibility that the defendant lost control of his Lamborghini as he suggested in his police interview, or that it was the result of the defendant’s application of moderate acceleration.
The defendant is entitled to the benefit of the doubt that arises on the evidence concerning the critical issue of the specific manner of the alleged dangerous driving upon which the prosecution case has been presented to the court.
It follows that I am not satisfied that the prosecution has established beyond a reasonable doubt that the defendant drove in a manner that was objectively dangerous.
Verdicts

I find the defendant not guilty of the two primary offences.