R v Culshaw
[2017] SADC 60
•15 June 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CULSHAW
Criminal Trial by Judge Alone
[2017] SADC 60
Reasons for the Verdict of His Honour Judge Tilmouth
15 June 2017
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - PROOF AND EVIDENCE
Elements and proof of the offence of causing death by dangerous driving considered and discussed. Accused found guilty on account of grossly defective lookout amounting to driving in a culpably negligent manner.
Criminal Law Consolidation Act 1935 (SA) s 19A; Road Traffic Act 1961 (SA) s 45(1), s 45(2), s 45(3) and s 45(a); R v Covenatary (1938) 59 CLR 633; R v Duncan (1953) 11 SASR 592; R v Mayne (1975) 11 SASR 583; R v Cornish (1988) 48 SASR 520; King v The Queen (2012) 245 CLR 588; Jiminez v The Queen (1992) 173 CLR 572; R v Greenham (1997) 25 MVR 495; R v Higgins (1829) 3 C&P 603; R v Karpany [1937] SASR 377; R v Sharp (1988) 86 Cr App R 274; Mule v The Queen (2005) 79 ALJR 1573; R v Tobinson & Tiplady (1985) 123 LSJS 37; Murphy v The Queen (1989) 167 CLR 94; R v Fowler (1985) 39 SASR 440; R v Hall (1988) 36 A Crim R 368; Wells v Gill [1960] SASR 106; R v LKP (1993) 69 A Crim R 159; R v Pearse [2011] SASCFC 65, referred to.
R v Kamleh (1990) 51 A Crim R 435; McBride v The Queen (1966) 115 CLR 44; King v The Queen (2012) 245 CLR 588, applied.
EVIDENCE - GENERAL - INSPECTION
Discussion of the power and the circumstances making it appropriate to take a view after the evidence is closed and final addresses completed.
R v Alexander [1979] VR 615; R v Kozul (1981) 147 CLR 221; R v Ireland (No 1) [1970] SASR 416; R v Ireland (No 2) [1971] SASR 6; R v Oakley (1979) 70 Cr App R 7; Myers v R [2016] AC 314; Dryburgh v The Queen (1961) 105 CLR 532; Mahmood v Western Australia (2008) 232 CLR 397; R v Nguyen (2007) 180 A Crim R 267; R v Berry [1992] 2 AC 364; R v Glastonbury [2014] SASCFC 44; Juries Act 1927 (SA) s 88; Wolper v Poole (1972) 2 SASR 419, referred to.
R v CULSHAW
[2017] SADC 60Contents
Overview
The charge
Prosecution Case – a summary
Elements of causing death by dangerous driving
Fundamental precepts of criminal trials
The Sturt Highway and road signs
Uncontested facts
Two work journeys
Mr Culshaw’s eyesight and driving standards
Motorbike lights
Reconstruction evidence
Critical findings
First limb of prosecution case - speed
Second prosecution limb - lookout
Conclusion and verdict
Overview
Young truck driver Daniel Carnal left his depot on Kemp Road near the Sturt Highway, just over an hour before sunrise on 18 March 2014. As he waited in the median strip of the Sturt Highway to turn right, he watched a motorbike travel from his left to his right. Soon after a silver car passed in front of him heading in the same direction at about the same speed. Mr Carnal then proceeded onto the Highway heading his Mack Prime Mover and a three axle dog trailer northwards towards the Barossa Valley.
A short time and 4.2 km later, he noticed hazard lights ahead to his left. This caused him to move into the right hand lane of the dual carriage highway ‘in case he’s broken down’.[1] The next thing he saw was a person lying on the right carriageway at a point when Mr Carnal was ‘pretty much on top of him’. [2] He braked heavily to bring his rig to a halt just behind the person. This person on the road was deceased.
[1] T79.26.29.
[2] T79.30-80.53.
Mr Carnal soon noticed another person in the vicinity, standing in the median strip ‘on the edge of the right-hand lane’.[3] This person was the accused Mr Culshaw. The deceased was the rider of the motorbike and Mr Culshaw was the driver of the silver car seen earlier. Both vehicles were involved in a rear end collision resulting in the death of the deceased, Mr Byrne. Mr Culshaw, as driver of the vehicle colliding with the rear of the motorbike, is charged with causing death by dangerous driving.
[3] T80.6-.21.
The charge
The accused was first arraigned in this court on 9 June 2015 and entered a plea of not guilty. Later another Judge made an order for trial by Judge alone. The trial itself was held over five days commencing on 2 May this year. At the commencement thereof, Mr Culshaw again pleaded not guilty. He pleaded guilty however to the lesser alternative offence of aggravated driving without due care pursuant to s 45(9) of the Road Traffic Act 1961 (SA) (the RTA). It is not in dispute that this alternative charge is open, even though not expressly pleaded: R v Coventary,[4] R v Duncan,[5] R v Mayne.[6] The aspect of aggravation is causing death: s 45(2) and (3) of the RTA. At the conclusion of the trial, judgment was reserved. These reasons explain why the primary charge is proven beyond reasonable doubt.
[4] (1938) 59 CLR 633, 637.
[5] (1953) Noted at 11 SASR 592.
[6] (1975)11 SASR 583, 585.
The particulars of the charge laid on the Information before the court are that Mr Culshaw as driver of the car at the time it collided with the rear of the motorbike, drove ‘in a culpably negligent manner, or recklessly, or at a speed, or in a manner dangerous to any person’, contrary to s 19A of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
Prosecution Case – a summary
At approximately 6.00 am on Tuesday 18 March 2014, the deceased rode his Harley Davidson motorbike North on the Sturt Highway in the area of Shea-Oak Log, on his way to work at Angaston in the Barossa Valley. Shea-Oak Log is roughly 16 km North East of Gawler and about 60 km NN East of Adelaide. Mr Culshaw was some distance behind the deceased, driving a silver Magna sedan, also on his way to work with a different employer in Angaston.
Shortly before impact both drove through the intersections of the Sturt Highway and the turn-off to Roseworthy to the left and then very shortly afterwards Gomersal Road to the right, and where the speed limit was ordinarily 110km/h. Soon after Mr Culshaw collided with the rear of the motorbike which became embedded under the lip of the bonnet of the Magna. The point of impact was immediately adjacent to the point at which temporary speed reductions ceased and the resumption of the 110 km/h limit recommenced. There is a large green permanent road sign on the Sturt Highway just North of the Roseworthy turnoff indicating Gomersal to the right. Since that sign is 302.4 m from the point of impact, the exit to Gomersal Road is a little closer than that.[7]
[7] Agreed Fact 7, Exhibit P18, Email Mr Longson 15 May 2017, view transcript 20 May 2015.
The deceased was found on the roadway close to the centre median strip, 72 m North of this point of impact.[8] This position is depicted in photograph 3 of Exhibit P2 and is marked by the cone labelled ‘D’ in photographs 6, 7, 11, 12 and 24-26 of Exhibit P3. He was pronounced deceased at 6.46 am by paramedics at the scene. A post-mortem report by Dr Wills tendered as Exhibit P7, found that death resulted from multiple injuries, particularly to the spinal cord. The point of impact is marked on the police plan Exhibit P4 as point ‘A’. Mr Culshaw’s Magna and the motorbike came to rest some 124 m from the point of impact in a grassed area beyond the Northern dirt verge.[9] This position can be seen in photographs 1, 3, 4 and 5 of Exhibit P2 and 6, 7, 11, 12 and 19 of Exhibit P3. These are at the points marked ‘B’ and ‘C’ respectively in Exhibit P4.
[8] T6.38, T54.19, T276.26.
[9] T6.10-.34, T14.27, T54.20.
Mr Culshaw was interviewed later that morning by police at the Gawler Police Station, commencing at 9.28 am. An audio-visual recording was tendered as Exhibit P12, and a transcript thereof marked Exhibit MFI P12A. He stated under caution that he did not see the motorbike and in fact thought he hit a kangaroo.[10] He further told the police that he was doing 110 km/h, even though his cruise control was set to 115 km/h.[11] He added that he was doing the speed limit ‘then all of a second [sic sudden?] I hear a bang … I slammed on the brakes straight away’.[12]
[10] Exhibit MFI P12A, p 4, L 3-4.
[11] Exhibit MFI P12A, p 22, L 11-26.
[12] Exhibit MFI P12A, p 4, L 4-5.
Mr Longson for the Director of Public Prosecutions, pitched the case against Mr Culshaw under two broad limbs, considered individually or in combination. The first focuses on speed amounting to ‘speed dangerous’, in the context of a 40 km/h speed limit immediately preceding the point of impact (Point A). Given the admission by Mr Culshaw of manually setting the cruise control once reaching 115 km/h after entering the Northern Expressway,[13] he was on this view of matters travelling at as much as 75 km/h above the temporary speed limit. This submission assumes Mr Culshaw did not slow down upon reaching the speed restriction signs in order to comply with them, as he was required to do by Rules 20 and 21 of the Australian Road Rules.[14]
[13] Exhibit MFI P12A, p 22, L 22.
[14] See Road Traffic (Road Rules Ancillary and Miscellaneous Provisions) Regulations 1999 (SA).
The second prosecution limb focusses upon a gross failure to keep a proper lookout. The submission is that since Mr Culshaw passed through an area of up to 400 m of overhead lighting before the impact (the closest overhead light on this portion of the road to point ‘A’ is 97 m and the furthest is 384.7 m[15]), he was catching up to the deceased in a stretch of illuminated roadway. As he made admissions of not seeing the motorbike, the Prosecution argued that it follows he must not have kept a sufficient lookout at all.
[15] Agreed facts 1-6, 8 and 9, Exhibit P18.
Elements of causing death by dangerous driving
The prosecution is required to prove beyond reasonable doubt, each of the following elements of the offence of causing death by dangerous driving:
1Mr Culshaw was the driver of the Magna; this is not in dispute as he admitted as much in the interview with the police and in giving evidence on his own behalf.
2The Magna was driven in a manner which was dangerous to the public; this is the central issue in dispute in the trial.
3That by driving in that manner, Mr Culshaw caused the death of the deceased. This is not in dispute as by his plea of guilty to the alternative charge, he necessarily admits causing death.[16]
[16] See R v Leaf-Milham (1987) 47 SASR 499, 503, and Defence counsel conceded as much, T319.18-.25.
There is no suggestion still less any evidence, that Mr Culshaw was driving involuntarily, or fell asleep, or had passed out at the time. He in fact told the police and gave evidence that he slept well the previous night and did not consume drugs or alcohol.[17] There is no reason to doubt that this was the case. There is no hint of the influence of alcohol or drugs during the course of the police interview that very morning.
[17] T196.30-.33.
With respect to the element of driving in a manner dangerous to the public, it is well understood this involves driving in such a manner as to impose on other road users, such a risk that any reasonable person in the situation of the accused would recognise as presenting a real danger to the public and which is in no sense an ordinary or necessary risk of the road, amounts to a manner of driving that is dangerous to the public.
The manner of driving for this purpose is assessed objectively: R v Cornish.[18] This depends upon an objective assessment of whether there is a serious breach of the proper management of a vehicle, so serious as to be in reality potentially dangerous to others who may be in the vicinity: King v The Queen.[19]
[18] (1988) 48 SASR 520, 522.
[19] (2012) 245 CLR 588 [33].
As King CJ pointed out in in R v Kamleh:[20]
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.
[20] (1990) 51 A Crim R 435, 434.
Furthermore, the manner of driving must be so serious as to amount to an actual rather than a speculative danger to the public. In McBride v The Queen,[21] Barwick CJ wrote of the analogous s 52A of the Crimes Act 1900 (NSW):
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.
[21] (1966) 115 CLR 44, 49-50.
Six judges in Jiminez v The Queen,[22] quoted the above passage extracted from the judgment of Barwick CJ in McBride with approval, and then continued:
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. Although a course of conduct is involved it need not take place over any considerable period. Nor need the conduct manifest itself in the physical behaviour of the vehicle. If the driver is in a condition while driving which makes the mere fact of his driving a real danger to the public, including the occupants of the motor vehicle, then his driving in that condition constitutes driving in a manner dangerous to the public. ….But it should be emphasized, and it must always be brought to the attention of the jury, that the condition of a driver must amount to something other than a lack of due care before it can support a finding of driving in a manner dangerous to the public. Driving in that condition must constitute a real danger to the public.
[22] (1992) 173 CLR 572, 579, footnotes omitted. McHugh J wrote a separate concurring judgment.
Accordingly as Cox J explained in R v Greenham:[23]
The relevant element of the offence created by s 19 is the dangerous driving, not the cause of it. The jury will be called upon to make a qualitative judgment about a defendant's manner of driving in the light of all the circumstantial evidence. Typically there will be one or more acts of overtly bad or at least questionable driving - high speed, veering across the road, poor lookout and so on.
[23] (1997) 25 MVR 495, 500.
Fundamental precepts of criminal trials
As in all cases in the criminal court, Mr Culshaw comes before the court with the presumption of innocence in his favour. The prosecution bears the onus of establishing each element of the charge beyond reasonable doubt: Woolmington v The Director of Public Prosecutions.[24] It follows that should the evidence raise a reasonable doubt as to his guilt, Mr Culshaw is entitled to the benefit of that doubt: Woolmington,[25] King v The Queen.[26] He is not required to prove his innocence: R v Reeves,[27] Pryor v The Queen.[28] Still further, this being almost entirely a circumstantial case, if there is a reasonable or rational hypothesis consistent with innocence, Mr Culshaw is entitled to an acquittal: Shepherd v The Queen.[29] He is fully entitled to expect and receive an impartial and detached consideration of the charge without allowing matters of sympathy, prejudice, sentiment or emotion to play any part in the fact-finding process: Murphy v The Queen.[30]
[24] [1935] AC 462, 481.
[25] Above 481.
[26] (2003) 215 CLR 150, [18].
[27] (1992) 29 NSWLR 109, 117.
[28] (1969) 43 ALJR 388, 388.
[29] (1990) 170 CLR 573, 579.
[30] (1989) 167 CLR 94, 100.
The whole of the interview Mr Culshaw gave to the police is available as evidence for him, as well as against him: R v Higgins,[31] R v Karpany.[32] It is for the Tribunal of fact to consider whether to believe it, and it may attach different weight to admissions as opposed to self-serving explanation or excuses: R v Sharp.[33] What he told the police must be considered along with the sworn evidence and accorded such weight as it appears to be entitled to in comparison with the facts clearly established by the evidence: Mule v The Queen.[34]
[31] (1829) 3 C & P 603; 172 ER 565.
[32] [1937] SASR 377, 379.
[33] (1988) 86 Cr App R 274, 12.
[34] (2005) 79 ALJR 1573, [22]–[23].
Mr Culshaw elected to give sworn evidence in his defence, which stands to be considered in the same way as the evidence of any witness: Brown v The King.[35] He is entitled to such credit as is appropriate for taking that course and thereby submitting himself to cross-examination: R v Robinson & Tiplady.[36] By so doing he does not thereby assume any onus of proof, or any obligation to prove his innocence: R v Woods.[37]
[35] (1913) 17 CLR 570, 589.
[36] (1985) 123 LSJS 37, 38.
[37] (2008) 102 SASR 422, [38].
The Sturt Highway and road signs
The following details and configuration of the general area and the section of roadway involved, are not in issue. The speed limit along the Sturt Highway is generally 110 km/h outside Town limits. The general configuration is shown in the Google Map Exhibit P1.
Roadworks were commenced on the outbound (North) lanes in the area of the intersections with Roseworthy and Gomersal Roads the day before, Monday 17 March 2014. Prior notice of the roadworks was exhibited on the Sturt Highway about 1400 m South, or on the Gawler side of the area where the work was to commence, ‘approximately 5 days prior to works and remained until completion’, to quote from page 2 of the statement of the Traffic Management Supervisor, Mr Hall. This was tendered by consent without requiring him to be called, as Exhibit P6. This states the speed restrictions referred to earlier remained in place because an asphalt paver had broken down and remained on the side of the Highway on the night of 17 and 18 March 2014. The paver can in fact be seen in situ in photograph 4 of Exhibit P3, taken by police at the scene on the morning of the 18th.
Speed limits were restricted progressively down from 110 to 80, 60 and then 40 km/h, before resuming again at 110 km/h adjacent to the point of impact. The 40 km/h sign was situated at 183.5 m, the 60 km/h sign at 229.6 m and the 80 km/h sign at between 320.9 and 384.7 m in advance of a point adjacent to the point of impact.[38] The precise nature of signs so erected and used to restrict speed during the roadworks, is depicted in annexure ‘DH1’ to Exhibit P6.
[38] Agreed facts 3, 4 and 9 of Exhibit P18
There were two permanent speed signs resuming the 110 km/h limit, one in the grass verge on the left shoulder for the Northerly direction of travel, and the other on the right shoulder just inside the grassed area of the median strip, as seen in photograph 3 of Exhibit P2, and 5 and 6 of Exhibit P3. According to Rules 20 & 21 of the Australian Road Rules, drivers must not drive at speeds over the limit applying to the length of road between such signs, that is from the beginning of one speed restriction sign and ending at the nearest following sign.
Uncontested facts
A number of significant facts were not in dispute. Both driver and rider were blood tested by the Police for the presence of alcohol and drugs, and none were detected in either.[39] Neither the Magna nor the Harley Davidson were the subject of mechanical defects that could have contributed to the collision, subject to a slight qualification to be made later with respect to the lights of both. There is no suggestion that Mr Culshaw’s attention was distracted or compromised by the use of a mobile phone, adjusting the car radio or a satellite navigation device for instance, or by any passing or oncoming traffic. There is no suggestion of having to avoid an object or animal on the road, or of adverse weather conditions affecting the manner of driving. As sunrise is proven to be at 7.16 am, it was dark on all accounts, and there was a light cloud cover at the time as well as a full moon.[40]
[39] Agreed facts 1 and 2 of Exhibit P8.
[40] Statement of Agreed Facts, 3, 4 and 5-7 Exhibit P8.
Two work journeys
The deceased lived in the home of the witness and friend Mr Silsby, in Paxton Street, Willaston. Willaston is a Northern suburb of Gawler, largely depicted in the Google Map Exhibit P9, on which Mr Silsby’s house is marked. He was aware the deceased worked in the Barossa and that it involved eight hour ‘rotated continental shifts … days, nights, afternoons’.[41] This is consistent with the evidence given by the deceased’s friend Mr Williams.[42] Mr Culshaw told the court he had worked in the Barossa for a number of months and that on this particular occasion he drove from his home in the suburb of Munno Para just South of Gawler, to begin a morning shift commencing at 7.00 am.[43] There is no suggestion he was running late for work and therefore that he was in any particular hurry.
[41] T93.16-22, T103.34-104.2.
[42] T103.4-.18.
[43] T207.6-208.9.
Mr Silsby explained that due to the configuration of the roads around his home, the most convenient way of getting to the Sturt Highway was to travel along Paxton Street, turn left onto Burrows Street, right onto Main North Road, which then leads to the Sturt Highway. He said that this was the route the deceased would take.[44] According to him, the deceased left for work quite early on 18 March 2014.[45]
[44] T92.26- 93.33 and T 94.38-96.14.
[45] T96.1-.8.
As it transpires, the civilian witness Mr McDonald who also lived in Paxton Street, was driving to work that same morning around ‘6 ish’.[46] He had just reached the junction of Davies Street and Main North Road when he saw a motorbike stop to give way to him.[47] Having an interest in motorbikes himself, he guessed this was a Harley Davison due to its ‘reasonably distinct sound’.[48] He noticed its ‘dull … yellowish, candle power’ headlight was on and considered that it was ‘very, very dull’[49]. On peering through the rear vision mirror as they headed in opposite directions along Main North Road, he noticed a ‘tail light was … barely visible’ from a mobile distance he estimated to be 40 m, observed over a period of 4 to 5 sec.[50] Given the conjunctions of time and circumstances, together with the direction of travel of this motorbike, there can be no doubt this was the deceased riding his Harley Davison to work that morning.
[46] T61.36-.38.
[47] T60.24-61.38.
[48] T60.18-23, 66.21-23.
[49] T62.36-63.9, 65.32-66.57.
[50] T63.10-24, 66.18-67.21.
The evidence of Mr Culshaw supported by that of Mr Carnal, was that after leaving his car to inspect the roadway, Mr Culshaw immediately called his wife and then the ‘000’ emergency number. The time or contents of this call were not tendered in evidence. It is known that Police Officer Waldhuter arrived at the scene at 6.15 am when another police patrol was already in attendance.[51] These times are consistent with the above conclusion that the deceased was seen a little earlier that morning at Willaston.
[51] T87.38-88.13.
Mr Byrne’s workmate and friend Mr Askew had somewhat ironically taken the same route to their place of work that morning, some five to ten minutes earlier than he had.[52] These coincidences align to suggest that this accident took place between 6 and 6.10 am on the morning in question. Mr Carnal described taking the phone from Mr Culshaw to resume the ‘000’ call and said that police arrived at the scene some ‘five to eight minutes after I got off the phone to them’.[53] He took over the ‘000’ call as he considered Mr Culshaw to be ‘irate … he was lost … in shock … beyond himself’.[54]
[52] T70.1-.33.
[53] T80.35-81.10, 81.32-38.
[54] T81.11-14, 85.35-36
Mr Culshaw’s eyesight and driving standards
Mr Culshaw wears glasses or contact lenses. He was examined by Specsavers West Lakes on 12 October 2012, and diagnosed with the condition Keratoconus. This affected the eyesight in both eyes, more so in the right than in the left. Dr Mills, a surgical specialist in ophthalmology who saw Mr Culshaw on 14 April 2014, described this condition as:[55]
… a disease of the cornea, which is the front of the eye, the clear wall of the eye. It provides two-thirds of the focusing mechanism of vision and in keratoconus it becomes abnormally thin and warped and distorts vision, blurs the vision.
[55] T155.38-156.7.
A pair of glasses was prescribed for him in October 2012. The spectacles found later in the Magna were retrieved by the Police at the request of the prosecutor during the course of the trial. These can be seen in photograph 11 of Exhibit P2 in the passenger side front foot well of the Magna. They were examined by the Optometrist Ms McKernan of Specsavers West Lakes the day before she gave evidence. She found these to be the spectacles prescribed in October 2012. These glasses became Exhibit P17. Mr Culshaw identified them as his when giving evidence and as those he wore when he collided with the motorbike.[56]
[56] T200.7-.20, T214.18-.32.
Mr Culshaw re-attended Specsavers on 5 April 2013, when a reduction of sight in both eyes was detected. A new pair of prescription glasses was ordered, altering the power as well as the axis or location of the lens in front of each eye. These were never collected, even though he paid a deposit for them.[57] He told the court the reason for this was that he was too preoccupied with other more pressing responsibilities, a recent marriage, having a baby, moving house and ‘work as well I just never got around to doing it’.[58] In these combined circumstances, the failure to collect the new pair of glasses is understandable enough.
[57] T202.15-16.
[58] T202.17-22.
During the course of her evidence, Ms McKernan referred to a ‘recognised driving standard’ of 6/12 for both eyes with a higher score indicating better vision.[59] She observed that as of April 2013, Mr Culshaw’s left eye was 6/12 and his right eye 6/18, bringing him within the driving standard using the new prescription.[60] She gave this evidence in respect of his eyesight as measured in April 2013 according to those standards:[61]
QWhen Mr Culshaw's eyes were tested in April 2013 where did he come in relation to that line.
AHis better eye, the left eye, was reading just on 6 over 12 and that's on the driving standard.
QWhat about his right eye.
AThe right eye was reading 6 over 18 and so it meant that it was a bigger sized letter on the chart.
QIs that while he is wearing his glasses.
AYes, that's his corrected vision, yes.
[59] T170.19-.30.
[60] T170.27-171.13.
[61] T170.27-35.
Accordingly, she opined that it was ‘unlikely’ Mr Culshaw met the driving standard whilst wearing the first pair of glasses:[62]
QSo in April 2013, given the results of the test then wearing those glasses that we call Exhibit P17, was he within or without the driving standard.
AGiven the change in the axis on the left eye and because he was just making the driving standard with his new prescription, it would be unlikely that he would be making that standard with these glasses (INDICATES).
QWhen you say 'unlikely', is that as accurate as you can put it.
AIt would be unlikely that someone who is just making the driving standard with the more recent prescription would be able to make it with these. I wouldn't think so.
[62] Exhibit P17: T171.20-31.
As she had not examined Mr Culshaw, this evidence was based on the notes of the optometrist Mr Bhoola.[63] The driving standards referred to, do not appear to derive from any statutory or regulatory obligation, or from any requirement to advise the Registrar of Motor Vehicles for instance. Rather, they were adopted merely as ‘professional procedure’.[64]
[63] T171.35-.36.
[64] T 172.14-19.
Mr Bhoola gave evidence in the prosecution case. He has since left the employment of Specsavers West Lakes. He considered only the left eye met the driving standard using the old prescription glasses ‘in good lighting’, but that Mr Culshaw would meet it with the new glasses although he would still struggle at night.[65]
[65] T 185.32-186.10.
In light of the changes to Mr Culshaw’s eyesight, Ms McKernan suggested that good practice was to give ‘significant advice’ to the patient, which should be recorded in Specsavers records.[66] The fact of the matter is that there is no such entry in the patient notes with respect to the April 2013 consultation (Exhibit P19). For his part, Mr Bhoola said he expected he would advise Mr Culshaw to wear the new glasses if he intended to drive, but then he appeared to qualify that statement as depending ‘on where our discussion was leading’.[67] He added that he recorded such discussions ‘at times … at times I would not.’[68] He went on to assert only that he would have expected or assumed he gave such advice, but in the end conceded he could not definitely say whether he did or did not.[69]
[66] T 172.20-28.
[67] T 186.72-187.1.
[68] T 187.1-23.
[69] T 189-32-191.20.
Given the absence of a note concerning advice given or otherwise in April 2013, in contrast to a short note of advice given by him with respect to the April 2012 visit as appears in Exhibit P19, together with issues concerning the adequacy of his note keeping, it is not possible to conclude by any standard that Mr Culshaw was advised in April 2013 not to drive without wearing the second pair of glasses.[70] Mr Culshaw’s evidence to that effect accords with this conclusion.[71]
[70] T 178.19-29,191.31-192.23.
[71] T 202.4-.14.
There is another consideration bearing on this issue. Mr Culshaw told the court he preferred the glasses he was wearing on this morning.[72] This is supported by a note entered into the Specsavers records of April 2013 ‘patient prefers initial specs’[73]. This may be another reason contributing to his failure to collect the second pair.
[72] T 220.9-.22.
[73] Exhibit P19.
It is to be recalled that Mr Culshaw was working shift work for at least several months beforehand on a rotational basis. This meant that on many occasions he was required to travel either to or from work in darkness - and possibly at times both - even allowing for daylight saving time. It is impossible to suppose that he would put other road users at risk, still less expose his own personal safety, if the first pair of glasses significantly compromised his vision when driving. It is equally difficult to accept that he would persistently continue to wear defective glasses for over eleven months since his last appointment, if his eyesight was so impaired. It might be noted in this context that the specialist Dr Mills assessed Mr Culshaw’s vision on 14 April 2014 as 6/38 in the right eye and 6/15 in the left.[74] It was at this time after the charged incident, that Mr Culshaw became aware of the true nature of his problem.[75] Dr Mills was not questioned by either counsel with respect to the so-called ‘driving standards’.
[74] T 157.10-13.
[75] T 203.14-34.
For all of the above reasons, it is not reasonably open to conclude that wearing the first set of spectacles had anything to do with this unfortunate accident. The evidence does not indicate how or in what manner Mr Culshaw’s eyesight was compromised for driving purposes. It might be observed that the position they were found in the front passenger foot well of the Magna, is consistent with dislodgement from the normal worn position at the time of the impact.
Motorbike lights
The evidence of the deceased’s friend of ten years and fellow Harley Davison enthusiast Mr Williams, was that the deceased was fastidious with maintenance and with modifications to his motorcycle.[76] It was Mr Williams who took the two photographs of the deceased’s bike some twelve months earlier, seen in Exhibit P11.[77] He acknowledged a number of alterations to the bike made since, particularly to the rear wheel and exhaust pipes. However he considered the rear tail light - and by inference the rear brake light - remained unchanged.[78]
[76] T 102.35-103.3.
[77] T 106.21-39.
[78] T 107.5-108.8.
On close inspection, the rear wheel mudguard seen in P11 matches that depicted in the photographs taken of the damaged motorbike belonging to the deceased.[79] Mr Williams advised the court that these motorbikes are ‘hardwired’, so that when the ignition is turned on, the lights come on automatically, the front on low beam.[80] This was also the evidence of Mr Silsby,[81] as well as that of the police mechanic who examined it later.[82] Furthermore, the electrics are designed in such a way that the strength of current to the lights has nothing to do with the number of engine revs, and consequently nothing to do with the speed of the motorbike.[83]
[79] Exhibit P3, 20-21, Exhibit P 15, 1-3.
[80] T 101.37-102.7.
[81] T98.26-.33.
[82] T139.7-.11.
[83] T 106.3-20.
Mr Williams in fact rode home from work with the deceased on the Friday evening beforehand in complete darkness, leaving the Angaston work place at around 2320.[84] They took the Sturt Highway to the Willaston Hotel, in the reverse direction of travel to that taken the following Tuesday morning. For most of this part of the journey, Mr Williams was riding behind the deceased during which his tail light was clearly visible.[85]
[84] T 104.3-105.6.
[85] T 105.28-106.23.
Both Mr Williams and Mr Silsby spoke of the deceased’s ingrained habits before embarking upon a journey on his motorbike. This involved warming it up and cursory inspection.[86] In light of his attention to detail, it is extremely likely the rear light was present and operative on the morning of 18 March 2014, when he started it up in the darkness of Mr Silsby’s garage, bearing in mind his meticulous habit of preparation. Looking at it another way, if the rear light was missing, he must have noticed it at that time. It is doubtful that he would embark upon his own work journey in the hours of darkness on the open highway on a vehicle in that condition. There was a strong component of personal safety at stake. Moreover, as already explained, Mr McDonald saw this motorbike on Main North Road at Willaston this very morning with its lights working, albeit that both front and rear were weak.
[86] T 91.17-29, 102.14-35.
Based on this combination of circumstances, there is no reasonable possibility that the rear light of the deceased’s motorbike was either missing or not working. There is on the other hand, a reasonable possibility that these were weak beams to the front and rear, at least on this particular morning. This conclusion is perfectly consistent with accident damage observed afterwards. As mentioned earlier, the damaged bike was clearly wedged towards the inside front right headlight of the Magna. The front bumper bar was wedged against the upended rear mudguard of the motorbike, folded over the rider’s seat by force of the impact.[87] The nature of the damage to the rear mudguard of the bike suggests the tail light assembly was sheared off by the impact.[88] There is no evidence as to where the rear number plate was found at the scene, although it was placed on the floor nearby when inspected by the police mechanic the following month.[89] There was no attempt by the prosecution to prove the strength of the beam of either tail or brake lights of the kind that were potentially fitted to the motorbike at the time.
[87] Exhibit P3, 15-20, Exhibit P14.
[88] Exhibit P3, 20-23, Exhibit P14 and Exhibit P15.
[89] Exhibit P14, Nos: 1 and 2.
It appears at first sight to be a complete mystery that the entire tail light assembly, or at least a shard or a fragment, was not found anywhere at the scene. The Major Crash Investigations Officer Mr Bakker spoke of looking behind the bumper of the Magna for any sign of the tail light and of ‘walking through’ the scene several times without finding anything.[90] The senior vehicle examiner for SAPOL Mr McDonald, inspected the engine compartments and removed the grill of the Magna at the Ottoway Police Compound on 30 April, with similar results.[91] The motorbike was noted to be in the fourth of five gears at this inspection.[92]
[90] T 45.19-45.15.
[91] T 122.12-37.
[92] T 128.1-9.
Based on the absence of any evidence of finding any part of the tail light, the defence expert Mr England expressed the opinion under cross-examination, that there was no tail light on the motorbike at the time of impact. He initially based this opinion on ‘the absence of any evidence of the tail light’.[93] When further challenged on the point, he defended his position on the following bases:
·glass from the tail light was subject to the laws of motion and gravity and so would travel in the same direction as the car and motorbike;[94]
·no glass would have moved onto the grass verges;[95]
·to think that ‘every scrap of that tail light suddenly disappeared is inconceivable’[96]
·the police search of the scene ‘would have found something of the tail light if it had been there’;[97] and
·his experience of attending the scene of over 1,000 collisions and finding what ‘we are looking for’.[98]
[93] T 251.6-29.
[94] T 252.5-21.
[95] T 252.23-30.
[96] T253.31-37.
[97] T254.11-.13.
[98] T254.21-27.
There are several flaws in this line of reasoning. The Magna came to rest in the grassed area to the left of the roadway. Its direction of travel would have taken it even further into that area. If one projects the deceased’s direction of travel as shown on the site plan Exhibit P4, this leads to the grassed area of the wide median strip on the other side of the carriageway. Thus it is perfectly reasonable to suppose the tail light assembly could be flung into either of the two grassed areas. Secondly, there is an assumption that the tail light assembly consisted of glass, whereas the photographs suggest that the translucent portions at least could be made of plastic.
Still further, this position depends upon a number of unproven assumptions. Whilst not wishing to be critical, it is not evident that the police search was as comprehensive as it might be. More to the point, the grassed areas to the left and to the right of the accident area are extensive, and the grass is long and thick. The photographs of the tail light holder shows scrape like marks, strongly suggestive of the inference that the tail light was likely to have come off in one piece, although it is not possible to reach a conclusive finding as to that.[99] The very nature of the pattern to the end of the wires feeding current to the tail and brake lights, are consistent with this thesis, as they suggest those wires were recently clamped to a connector.[100] In addition, there is evidence of its presence on the previous Friday evening and in fact at Willaston this very morning, not so long beforehand.
[99] Exhibit P15, photographs 3-5.
[100] T132.28-133.9.
In the combined circumstances there is a strong possibility that the tail light assembly was sheared off at impact, or at least that is an inference which is plainly open. Being relatively light, it could have projected and landed anywhere over a large area. There is a distinct possibility that it remains hidden somewhere in one of the heavily grassed areas. This being the position, the underlying facts upon which this aspect of the opinion evidence of Mr England, are unsubstantiated and therefore must be rejected: Murphy v The Queen;[101] R v Fowler.[102]
[101] (1989) 167 CLR 94, 120.
[102] (1985) 39 SASR 440, 442-443.
Reconstruction evidence
Despite this criticism and the degree of caution it calls for, the evidence of Mr England reconstructing the events can otherwise be accepted, with one further exception later identified. First, his experience, training and qualifications in accident reconstruction are extensive.[103] Prosecuting counsel did not take issue with them. Secondly, a report prepared by him was served on the prosecution by defence solicitors in advance of the trial: s 285BC CLCA. Despite this, the prosecution did not adduce any evidence in contradiction of the opinions expressed by Mr England in it, or in his evidence for that matter.[104] It is not open to reject unchallenged evidence of an expert witness when there are no facts or circumstances casting doubt upon it: R v Hall.[105]
[103] T225.4-226.13.
[104] T227.25-29; 314.20-32.
[105] (1988) 36 A Crim R 368, 370.
There were a number of conclusions drawn by Mr England which are of significance, all based on the scene plan Exhibit P4 and the source material used by the police in preparing it. The critical aspects of this evidence were these:
1At the point of the first tyre mark left on the roadway by the Magna in braking, marked T6 on Exhibit P4, the Magna was travelling at 87 to 96 km/h.[106] The distance between the point of impact ‘A’ and ‘T6’ is 65.4 m.[107] He considered the most likely speed at T6 was 92 km/h.[108]
[106] T 228.19-229.3.
[107] T 236.21-37.
[108] T 239.26-240.23.
2On the assumption that the deceased fell backwards onto the bonnet of the Magna and thereby ‘achieves the same speed as the car’, the deceased fell to the roadway at between 79 and 92 km/h.[109]
[109] T 232.6-35.
3The closing speed between the two vehicles was in the range of 20 km/h.[110]
[110] T 228.34-229.10.
4Assuming the Magna travelled at between 87 to 96 km/h between points ‘A’ and ‘T6’, 2.4 to 2.69 sec would elapse.[111]
[111] T 236.31-237.12.
5It would take approximately .8 of a second to move the foot to the brake pedal,[112] and the perception and response times immediately before braking are between 2.4 and 2.7 sec.[113] (This is consistent with the conclusion reached in point 4 above).
[112] T 237.12-14 to T 238.13-19.
[113] T 237.25 – 238.37.
6It was not possible to estimate the speed of the Magna at the point of impact, however the ‘likelihood’ is that it was either accelerating or remained constant.[114]
[114] T 241.1-82.
7Assuming a closing speed of 20 km/h between the two vehicles, the Magna was closing in on the Harley Davison at 5.5 m per second (mps).[115]
[115] T 249.29-34.
8Based on Mr England’s evidence and otherwise by the consensus of counsel, a vehicle will travel the following distances at the following speeds:
59 km/h – 16.39 mps
87 km/h – 24.167 mps
60 km/h – 16.67 mps
90 km/h – 25 mps
67 km/h – 18.611 mps
92 km/h – 25.556 mps
70 km/h – 19.444 mps
96 km/h – 26.667 mps
76 km/h – 21.111 mps
100 km/h – 27.78 mps
79 km/h – 21.944 mps
110 km/h – 30.56 mps
80 km/h – 22.22 mps
115 km/h – 31.94 mps
Critical findings
The case against Mr Culshaw is essentially a circumstantial one, apart from the admissions. There is an assumption in the stance taken by the prosecutor that the Magna was travelling at 115 km/h at the point of impact, whilst the cruise control remained manually engaged. That assumption is not proven beyond reasonable doubt essentially for three reasons. First, there is a significant margin for error with cruise control settings, especially with such a dated vehicle, which could be as much as 10 per cent.[116] Secondly, the speed calculations referred to above, tend to suggest a lower speed even allowing for the prospect that the speed of the Magna at impact was greater than 87 to 96 km/h. Thirdly, although Mr Culshaw spoke to the police of setting the cruise control at 115 km/h, he also said he was doing the speed limit.
[116] T 248.32-249.19.
It is therefore not open to find that it was any more than 110 km/h, because there is a distinct possibility that it was no more than that and possibly much less in view of the estimates of Mr England. At the other extreme, it is not reasonably open to conclude the Magna was travelling at less than 79 km/h, based on Mr England’s conclusion (No 2 above). It is therefore reasonably possible that Mr Culshaw allowed the vehicle to slow, but certainly not to as little as 40 km/h.
Based on the points of impact and the calculations of the speed at which the rider contacted the roadway, the speed of the Magna could have been between 79 and 92 km/h. The estimate of the closing speed is consistent with the relatively light damage to the Magna, although the police mechanic did identify some chassis damage, which he marked on photograph 8 of Exhibit P13.[117] Mr Longson suggests Mr England paid insufficient regard to the structural damage to the chassis of the Magna and thus calculated the closing speed of 20 km/h on the incorrect assumption that it was insignificant.[118] Mr England acknowledged that he did not inspect that damage,[119] but on the other hand as observed earlier, it was not apparently that great. Since Mr England did not inspect the Magna himself and since he appears to have assumed little damage,[120] it is doubtful this estimate of closing speed is admissible: Cooper v Beech (No 2),[121] compare R v Thompson.[122] The conclusions to follow do not therefore rely on the estimate of closing speed.
[117] T 119.31-37, 125.7-19.
[118] T229.3-.5.
[119] T250.38-251.3.
[120] T249.34-250.3.
[121] (1975) 12 SASR 151, 153.
[122] (1986) 13 FCR 165, 173-174.
Whatever the precise situation, it is clear that neither rider nor driver slowed to anywhere near the 40 km/h speed restriction. It is equally clear that Mr Culshaw saw neither rider nor bike. This might be contributed to by a fairly weak tail light on the bike and possibly slightly weak headlights of his own, but only outside the illuminated area over a relatively short distance of 97 m between the closest light pole and the point of impact. Furthermore, the motorbike was predominantly black and the deceased wore dark clothing.[123] Otherwise, approximately the first 200 m of the 300 m immediately before impact was illuminated by overhead lighting, so that any defect in the lights of either vehicle would have a minimal influence in bringing about impact, if any at all. The circumstances were clearly such that Mr Culshaw ought to have seen the bike earlier.
[123] T 76.25-29; T85.24-25.
That opportunity to see ahead was not however continuous or unbroken, because as seen during the course of the views of the scene, there is a dip in which vehicles go out of sight for several seconds on the approach side of the turnoff to Roseworthy.[124] The only reference of any assistance was Mr Caldicott’s observation that ‘the cars disappear completely out of sight, and then reappear about what appears to be the Roseworthy intersection’.[125] The prosecution declined to contribute to the question. There is no evidence of how far back that exit is from the 110 km/h signs adjacent to the point of impact. It has to be borne in mind that a view is not evidence, although the distances in question ought to be capable of empirical measurement or at least estimation.
[124] T 52.8-30; T53.11-32; T54.6-11, view notes 20 May 2017.
[125] T54.6-.11.
The prosecution accepted Mr Culshaw was telling the truth during the course of his interview, a stance that can be readily accepted. Although his affect was unsurprisingly relatively flat, his responses were clear, considered and genuine. His sworn evidence does not take matters any further, although his response to questions under cross-examination about speed at the point of impact appears to be infected by his prior knowledge of what Mr England had to say about that.[126] Nevertheless, no adverse inference is drawn against him on account of those answers. Based principally on what he told the police, there is no doubt that he failed to see the motorbike or rider, or that immediately on impact he reacted to apply the brakes. As noted earlier it took 65.4 m of distance and between 2.4 - 2.69 sec before the brakes began taking effect at the point T6, which is consistent with his assertion that he reacted to apply his brakes immediately after impact.
[126] T 215.23-217.23.
First limb of prosecution case - speed
The conclusions drawn by Mr England suggest the Magna was travelling at no less than 79 km/h, and possibly no more than 96 km/h. The prosecutor laid great stress on the difference between the speed of the Magna at impact and the 40 km/h restriction applying for approximately 245 m prior to the point of impact. No doubt the applicable speed limit is a relevant consideration in assessing whether a particular piece of driving in the precise circumstances and situation engaged, is dangerous. Nevertheless, it is not decisive in and of itself, for as Doyle CJ observed in R v Gathercole:[127]
It is relevant to bear in mind that the driving occurred at a time when traffic was light and the speed was … not greatly in excess of the speed limit …
[127] (2001) 25 MVR 495, [11].
The maximum speed permitted for this particular section of roadway was normally 110 km/h. The speed restriction was temporary. Whether noticed by Mr Culshaw or not, there is a reasonable possibility that he did slow down to as much as 79 km/h. Furthermore, this was a relatively wide dual carriageway in good condition, with a flat uninterrupted surface of at least 300 m immediately before impact. There was very little traffic and of course no pedestrians about at the time.
All the evidence points to few vehicles on this section of the roadway, certainly between 6.00 and 6.10 am. Mr Culshaw himself spoke of seeing (and passing) just one vehicle.[128] Mr Byrne’s work colleague Mr Askew, who as noted drove along this stretch of highway some minutes earlier, told the court ‘I don’t think there was too much heading towards Nuri from Gawler that morning’.[129] For his part the truck driver Daniel Carnal said that ‘one or two cars, maybe three’ drove through the area on the accident side of the Sturt Highway, in the space of five to eight minutes from when he chanced upon the scene and police first arrived.[130]
[128] T 197.12-24.
[129] T 71.20-24. The reference to ‘Nuri’ is to Nuriootpa in the Barossa.
[130] T 81.32-37.
On the other hand it is inescapable that the successive speed restrictions over the course of no less than 300 m, served to put drivers on notice that vehicles up ahead were likely to slow down to as little as 40 km/h. It is that foreseeable contingency that carries the distinct capacity to render the manner of driving dangerous, because that circumstance called for a heightened degree of vigilance.
Second prosecution limb - lookout
The analysis to this point relies on various potential speeds of the Magna. The far more difficult problem is the length of unrestricted roadway available to Mr Culshaw to see the motorbike. There is no precise proof of the length of the unimpeded line of sight preceding the point of impact. Given the unsatisfactory state of the evidence on such a significant issue, the matter was called on again so as to permit the prosecution the opportunity to reopen its case. This opportunity was declined.[131] In light of this I determined to take a second view. This took place on Saturday 20 May 2017 in the presence of counsel and the accused. At first Mr Longson was somewhat diffident of the process, suggesting that it might amount to no more than an impermissible reconstruction.[132] At the view itself he remained uncommitted and at one stage questioned the authority to take a view after the close of evidence and final addresses.[133]
[131] [footnote transcript date and the return email]
[132] T8.35, 17/5/17.
[133] T326.31-327.21.
This attitude was misplaced. Of course the court as the trier of fact must not allow itself to make an unproven assessment or to become a ‘sleuth’, to borrow an expression from the judgment in R v Alexander,[134] in a passage quoted with approval by the High Court in R v Kozul.[135] As explained in R v Alexander:[136]
The position is different, once it is understood or agreed that evidence is to be adduced, or that an experiment, reconstruction or demonstration is to be carried out.
And it would seem to us that different considerations would assume more or less importance depending upon whether what is being sought is a view simpliciter, or something different.
…
Although the vague and imprecise suggestions made by counsel as to courses that the jury might take at the scene indicate woolly thinking, what counsel asked for was a view. In our opinion, a “view”, as that word is properly used, … is merely a visual presentation in perspective of evidence given in Court, which presentation is thought to be desirable for the purpose of enabling the jury to understand questions that are being raised and to follow the evidence given or to be given. It is not, in itself, evidence.
…
Where conditions are static, and the evidence concerning those conditions is either complicated or conflicting, a view may profitably be conducted and utilized (a) to enable the tribunal of fact better to understand the evidence given, (b) to enable the tribunal of fact better to adjudicate upon the worth of the evidence given. It is the evidence given in Court which is to be evaluated.
[134] [1979] VR 615, 32.
[135] (1981) 147 CLR 221, 242.
[136] [1979] VR 615, 632.
A second view was taken because estimates of distances are static conditions and times travelled over set distances are admissible evidence: R v Ireland (No 1),[137] R v Ireland (No 2),[138] Wolper v Poole,[139] R v Oakley,[140] Myers v R.[141] Secondly, evidence given after the close of proceedings or after a summing up for that matter, can be adduced in some circumstances, as it is clearly established by high authority that trial judges retain the discretion to allow evidence to be given after a jury retires to consider its verdict: Dryburgh v The Queen.[142] In Mahmood v Western Australia,[143] Gleeson CJ, Gummow, Kirby and Kiefel JJ considered the courts are usually inclined to allow a re-opening to call evidence ‘considered to be of sufficient importance’. That was the position here. The situation is no different to that when a jury retires and sends a note requesting a further view. It is common if not inevitable practice for judges to provide a jury every assistance they are entitled to and to rarely deny a specific request from a jury: R v Nguyen,[144] R v Berry,[145] R v Glastonbury.[146] Thirdly, if all this was not enough, the authority of a criminal court to hold a view is statutorily conferred by s 88 of the Juries Act 1927 (SA) ‘at any time before verdict’.
[137] [1970] SASR 416, 426.
[138] [1971] SASR 6, 14-15.
[139] (1972) 2 SASR 419, 421
[140] (1979) 70 Cr App R 7, 9-10.
[141] [2016] AC 314, [57].
[142] (1961) 105 CLR 532, 535.
[143] (2008) 232 CLR 397, [15].
[144] (2007) 180 A Crim R 267, [13] and [22].
[145] [1992] 2 AC 364, 382.
[146] [2014] SASCFC 44, [40]-[42].
Given the refusal of the prosecution to attempt to prove or estimate the actual clear line of sight once a North bound vehicle emerges from the dip some distance before the turnoff to Roseworthy, I am unprepared to conclude beyond reasonable doubt that any more than 304 m at the point of the permanent sign is available, from which there is undoubtedly a clear view ahead to the point of impact and beyond.
Based on this intermediate conclusion, the following potential range of travelling times apply between that sign and the point of impact, rounded down to 300 m for ease of calculation. These calculations commence with the lowest conceivable speed of the Magna and end with the highest referable to the various speeds referred to by Mr England:
59 km/h – 18.31 s 90 km/h – 12.00 s
67 km/h – 16.12 s 92 km/h – 11.74 s
76 km/h – 14.21 s 96 km/h – 11.25 s
79 km/h – 13.67 s 100 km/h – 10.80 s
80 km/h – 13.50 s 110 km/h – 9.82 s
87 km/h – 12.41 s 115 km/h – 9.39 s
Based on these calculations, Mr Culshaw potentially had available to him no less than between 18.3 seconds at its longest and 9.39 seconds at its shortest, in order to perceive the motorbike in front of him before reacting to it. This range of speeds allows him a considerable margin of time on any view of the speed of his car in between these upper and lower ranges. However as concluded earlier, the speed of the Magna was no less than 79 km/h and no more than 110 km/h, so the travelling time over the course of the 300 m involved is between 13.67 s and 9.82 s.
The ultimate question then becomes whether Mr Culshaw should appreciate that he was driving in a manner dangerous to the public in the proven circumstances. Of course excessive speed of itself, can in some circumstances amount to dangerous driving: Wells v Gill.[147] Likewise, even momentary inattention can amount to driving in a manner dangerous to the public: R v Coventry,[148] R v LKP.[149] Even so, the manner of driving must either be intrinsically dangerous, or dangerous in the particular prevailing circumstances: McPherson v Lucas.[150] As expressed in R v Pearse,[151] the errant driver must recognise the manner of driving creates a real danger to the public beyond the ordinary risks of the road. And, as emphasized by the High Court in King v The Queen,[152] ‘dangerous’ means ‘(f)raught with or causing danger; involving risk; perilous; hazardous; unsafe’.
[147] [1960] SASR 106, 107-108.
[148] (1938) 59 CLR 633, 638-639.
[149] (1993) 69 A Crim R 159, 161-162.
[150] (2008) 181 A Crim R 587, [31].
[151] [2011] SASCFC 65, [23].
[152] (2012) 245 CLR 588 [38].
The length of time involved of between 13.67 s and 9.82 s can on no account be regarded as momentary. Although a speed of as much as 110km/h was not inherently dangerous in the prevailing conditions, speed remains relevant to look out, particularly in light of the speed restrictions and the distinct prospect of a motorist slowing ahead, as the deceased had. The failure to perceive the Harley Davidson for between the times available even at most favourable to Mr Culshaw of 9.39 s, bespeaks more than mere negligence, but rather of danger going beyond the ordinary risks of the road. Expressed in another way, at a relatively low speed the failure to keep an adequate lookout was palpable and at a relatively higher speed the failure to see the motorbike was significant in light of anticipation of vehicles up ahead slowing down as required by the speed reduction signs.
On this view of matters it is unnecessary to reach a final conclusion as to what speed the Magna was actually doing at the point of impact, even if that were possible. The fact of the matter is that whether it was doing just 59 km/h on a potential view most favourable to Mr Culshaw, or as much as 115 km/h on a view of speed most unfavourable to him, or of any combination or permutation in between, lookout was so gross when viewed objectively, so as to amount to driving in a culpably negligent manner, and hence dangerous driving.
Conclusion and verdict
This case has proven difficult to resolve. Unusually, the prosecution rely on the truth of what an accused says in a police interview to sustain a verdict of guilty. There remains the complete mystery of the disappearance of the tail light of the deceased’s bike. The failure of Mr Culshaw to see the motorbike remains incomprehensible. None of the common features of aggravation are present, such as drugs, excess alcohol, overtly dangerous speed or ‘overtly bad driving’. Matters are compounded by the failure of the prosecution to assist the court with an accurate empirical measure or estimate of the distance of, or range of distances of the actual line of sight before impact.
The range of speeds potentially applicable to the vehicle driven by Mr Culshaw, do not represent of itself in the particular circumstances when viewed objectively, a departure so inherently serious as to amount to dangerous driving. The length of time in which he failed to see the vehicle was on the other hand, by any objective measure in the combination of circumstances, culpably negligent on any view of the facts.
A verdict of guilty is entered accordingly. The parties may now be heard in respect of the appropriate penalties.
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