R v Donovan - [2023] SADC 152

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DONOVAN
[2023] SADC 152
Reasons for the Verdict of her Honour Judge Fuller
7 November 2023
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
Accused charged with one count of causing death by dangerous driving - accused failed to see red light at pedestrian crossing on St Vincent Street, Port Adelaide - deceased had stepped onto roadway to cross at the pedestrian crossing and was struck by accused's vehicle - as a consequence of the impact she struck her head on the road and subsequently died in hospital. Speed limit on St Vincent Street 40km/h. Accused's vehicle estimated to be travelling in a range of 32km/h - 42km/h. Prosecution case was that accused's defective lookout involved such gross inattention as to amount to dangerous driving. No alcohol, drugs or mobile phone use involved. Vehicle in sound condition. Accused pleaded guilty to aggravated due care causing death. Plea not accepted by prosecution.
Accused gave evidence, explaining that his attention was focussed on the traffic lights 120 metres ahead at the Commercial Street intersection and he did not notice the pedestrian lights turn red. He did not see the deceased until just before his vehicle struck her.
Held: Accused's lookout was defective because he failed to see the pedestrian lights had turned red. No evidence from which a finding could be made that his vehicle was in a position to avoid the collision with the deceased once she started to cross the road. The accused's defective lookout was in the category of a common human failing. The prosecution has not proved beyond reasonable doubt that there was any aspect of the accused’s driving that subjected the public to some risk over and above that ordinarily associated with the driving of a motor vehicle.
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 19A; Juries Act 1927 (SA) s 7, referred to.
R v Gardi [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; R v Kamleh (1990) 51 A Crim R 435; Police v Melisi (2010) 106 SASR 105; R v Coventry (1938) SASR 79; R v Coventry (1938) 59 CLR 633; Jiminez v R (1992) 173 CLR 572; R v Mayne [1975] 11 SASR 583; McCandless v Police [2021] SASC 98; Bliss v R (1993) 173 LSJS 256; R v Lenarczyk [2015] SADC 95; Sprigg v Police [2011] SASC 10; Fritsch v Police [2012] SASC 54; Wimmer v Police [2013] SASC 95; Thiele v Police [2009] SASC 159; Police v Jachmann [2010] SASC 345 ; Nagy v Police [2018] SASC 141, considered.

R v DONOVAN
[2023] SADC 152
The charge

The accused is charged on Information with the following offence:
Statement of Offence
Causing Death by Dangerous Driving. (Section 19A (1) of the Criminal Law Consolidation Act, 1935.)
Particulars of Offence
Terry Christopher Donovan on the 28^th day of July 2021 at Port Adelaide, drove a motor vehicle in a manner which was dangerous to any person and thereby caused the death of Helen Denise Minerds.
The plea
The accused pleaded not guilty to the charge but guilty to the statutory alternative of aggravated driving without due care causing death. The prosecution did not accept that plea in satisfaction of the Information. If the accused is found not guilty of causing death by dangerous driving, he stands to be sentenced for aggravated driving without due care, having admitted that offence on 14 December 2022. The accused elected for trial by Judge alone and I heard the trial without a jury.
Elements of the offence charged
Section 19A of the Criminal Law Consolidation Act creates the offence of dangerous driving causing death.[1]
[1] Section 19A (1).
This 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.
Issue in dispute
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.
General directions
The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927 (SA). As Lovell J observed in R v Gardi,[2] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.
[2] [2015] SASC 186.
The general directions were summarised by Lovell J in R v Gardi. They are as follows:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
The accused gave evidence in his own defence. He was under no obligation to do so. In giving evidence he assumed no onus. I will treat his evidence in the same manner as the evidence of the other witnesses but will give him credit for adopting a course he was not obliged to adopt.
Overview of the prosecution case
At 11.20am on 28 July 2021 the accused was driving his Suzuki Ignis east along St Vincent Street, Port Adelaide. As he approached a pedestrian crossing east of Robe Street the lights turned red. The victim, Helen Denise Minerds, stepped onto the roadway to cross the road at the pedestrian crossing. The accused did not stop at the pedestrian crossing and struck Ms Minerds. She was propelled backwards and hit her head upon landing and subsequently died in hospital.
The speed limit on St Vincent Street where the collision occurred was 40km/h. The pedestrian crossing was controlled by a push button and when the traffic lights turned red, a green sign would illuminate, and a beeping tone emitted to signal that it was safe for a pedestrian to cross. There was a witness who saw the collision as he commenced to cross the pedestrian crossing from the opposite direction. A truck driver travelling 20-30 metres behind the accused saw the accused’s vehicle travel into the pedestrian crossing against the red light and without slowing down or applying the brakes. A driver in a car stationary at the pedestrian crossing who had been travelling in a westerly direction also saw the collision. A witness who had parked his car in the disabled parking space on the southern side of St Vincent’s Road saw the accused’s vehicle strike Ms Minerds. He heard her say ‘Oh my God’ seconds before being struck.
The accused alighted from his vehicle and shortly thereafter returned to it and parked it on the left-hand side of the road. Two police officers arrived within minutes of the accident, one of whom administered first aid to Ms Minerds. The other officer activated his body worn video camera after being told who the driver of the vehicle was and cautioned the accused. The accused gave a description of where he had been prior to the collision and said, ‘She wasn’t there one minute, and she was there the next’. The tests performed upon the accused for alcohol and drugs were negative. The accused’s vehicle was examined and found to be mechanically sound. A reconstructionist from Major Crash Investigation Unit estimated the accused’s vehicle to be travelling between 32km/h and 42km/h at the time of the collision.
The prosecution case was that the accused failed to maintain an adequate lookout while driving and the inattention more than a momentary lapse of concentration and was so gross as to amount to dangerous driving.
The evidence
I turn now to summarise the evidence led at trial.
View of the scene
I granted an application by the prosecution for a view of the scene to be conducted. That view took place on the first day of trial following the evidence of the investigating officer and police who attended the scene. The view commenced on the northern side of St Vincent Street at the pedestrian crossing. There were two traffic lights on the southern and northern side of the crossing. I crossed the pedestrian crossing noting the general layout and the position of the button and signal for pedestrians to walk across the intersection. I then noted the general layout from the southern side of St Vincent Street. I noted the traffic lights to the east on Commercial Street. I then travelled to the corner of Robe Street and looked east towards the pedestrian crossing from the roadway. I noted the position of the pedestrian lights and the lights for the intersection of Commercial Road and St Vincent Road further east. I then moved to the intersection of Nelson Street and St Vincent Street and looked east towards the pedestrian crossing. From this position in the left-hand lane the closest traffic light on the northern side obscured the traffic light behind it. Finally, my associate stood on the northern side of the pedestrian crossing at the entrance to the crossing.
I remind myself that a view is not evidence but was conducted to assist me to understand the evidence. I noted that on the approach to the pedestrian crossing travelling east there were a number of signs, landmarks, trees and buildings in a driver’s field of view. For example, there was a large green sign on the corner of Robe Street signalling the upcoming Commercial Road turn off, the St Vincent Road continuation and a separate sign, signalling the heritage precinct accessible from Robe Terrace and an information sign. There were also parking signs and 40km/h signs. There are three large trees, one on the corner of Robe Street, and two before and after pedestrian crossing. Visible in the distance were the traffic lights for Commercial Road. The area was ‘busy’ from a visual perspective.
Brevet Sergeant Kirsten McLoughlin
Brevet Sergeant McLoughlin was an investigator with Major Crash Investigation. She was the investigating officer in this matter. She attended the scene on 29 July 2021 at 12.01am with Brevet Sergeant Paul Griffiths. Local uniformed police were already on scene. The weather was cloudy, cold and the road was slightly damp.[3]
[3] T 13-15.
A map and photographs of St Vincent Street were tendered through Brevet Sergeant McLoughlin: Exhibit P1.
Brevet Sergeant McLoughlin examined the scene including the roadway. She did not locate any tyre marks. On the roadway where Ms Minerds had been lying were items of clothing and a small area of blood.[4] Photographs of the scene taken by Brevet Sergeant McLoughlin were tendered: Exhibit P2. A plan of the scene was also tendered: Exhibit P3. The area of impact was determined from eyewitness accounts and the position of the blood on the roadway.[5] The area of impact was 5 metres wide and 2 metres long. The distance from the right-hand corners of the area of impact to the blood was around 8 metres and from the left-hand corners it was 13 metres.[6]
[4]     T 22-23.
[5]     T 26-27.
[6]     T 29.
The first photograph in P2 was taken 95 metres before the pedestrian crossing.[7] At the time photograph 3 was taken the traffic lights for Commercial Road were red at the same time as the lights for pedestrian crossing.[8]
[7] T 30.
[8] T 33.
The stop line for vehicles at the pedestrian crossing was 6 metres from the closest point of the area of impact.[9] The photograph of the Suzuki Ignis in P2 was taken on 30 July 2021 when it was examined by a Major Crash mechanic.[10] The circle marked on the left of the bonnet indicated scuff marks where some surface debris or dirt had been removed from the bonnet. The circles marked to the right of the scuff marks indicated small dents. There was no damage or markings to the bumper bar of the vehicle.[11]
[9]     T 36.
[10]   T 37.
[11]   T 39.
Brevet Sergeant McLoughlin sat in the driver’s seat of the Suzuki and took a photograph of the view through the windscreen. There was nothing obstructing the view.[12] A portable satellite navigation device was in the middle console in front of the automatic gearbox and was off. If it had been on it would have been examined.[13]
[12] T 41.
[13] T 42-43.
Brevet Sergeant McLoughlin checked the status of the accused’s licence and said at the time of the collision he had a full class car licence with a restriction that he had to wear corrective lenses. The accused was wearing contact lenses at the time of the collision.[14] The accused returned a negative breath and blood test.[15]
[14] T 44.
[15] T 45.
The victim, Ms Minerds, was 64 years of age at the time of the collision. No drugs or alcohol were detected in her blood.[16] CCTV footage from the Council chambers showed that she left the council chamber at 11.19am.[17]
[16] T 45.
[17] T 46.
Brevet Sergeant McLoughlin pushed the button to activate the pedestrian crossing and found it was all in working order.[18] She made inquiries with the Traffic Management Centre and was told that there were no faults with the lights at that pedestrian crossing.[19]
[18] T 46.
[19] T 47.
In cross-examination, Brevet Sergeant McLoughlin said that the area of impact was 5 metres by 2 metres, but the actual point of impact could have been anywhere in that area.[20]
Senior Constable First Class Laurence Donnelly
[20] T 215.
Senior Constable Donnelly was on duty with Senior Constable Hayley Milligan on 28 July 2021. Around 11.20am he was driving a marked police vehicle with Senior Constable Milligan in the passenger seat along St Vincent Road in a westerly direction towards Nelson Street.[21] He noticed that the traffic was slow and there was a build-up of traffic. As they approached the pedestrian crossing, he saw an injured pedestrian on the road adjacent the council offices.[22]
[21] T 50.
[22] T 51.
Senior Constable Donnelly said there were about two or three people trying to administer first aid. The pedestrian, a female, was lying on her back and appeared to have a head injury. Senior Constable Milligan got out of the police car to assist with first aid whilst Senior Constable Donnelly positioned the vehicle on the northern side of the pedestrian crossing straddling the lanes and activated the blue and red lights to block traffic coming in an easterly direction.[23]
[23] T 52-53.
Senior Constable Donnelly said the weather was fine, but the road was damp in the shaded areas.[24]
[24] T 53.
As he made his way to the pedestrian on the road, a member of the public pointed out the driver of the vehicle to him.[25] He activated his body worn camera and spoke with the driver and obtained his name, date of birth and current residential address. After this, he cautioned the driver because he suspected that there may have been traffic offences committed. He then asked the driver if he could tell him what happened.[26] The footage was tendered: Exhibit P4A. The accused can be heard saying ‘she wasn’t there one minute, was there the next’.[27]
[25]   T 54.
[26]   T 55.
[27]   T 56-57.
The accused indicated to Senior Constable Donnelly that he had been driving a grey Suzuki Ignis which he had parked just after the pedestrian crossing.[28] Senior Constable Donnelly examined the vehicle and saw a small dent in the centre of the bonnet but could not see any other damage. He directed the accused not to take anything by way of mouth and to wait at the scene.[29]
[28] T 58.
[29] T 59.
In cross-examination, Senior Constable Donnelly agreed that he noted ‘wasn’t there one minute, was there the next’ in his notebook but not what the accused said earlier. He said it was a reasonably fluid situation and he wanted to obtain the details of the witness who said the accused was the driver.[30] He said that the accused told him he was looking for an address and was around the back of the supermarket and had gone down a street one way and had come back up the street the other way. He said this conversation was on the body worn video footage.[31]
[30] T 62.
[31] T 63.
In re-examination, he said that he made notes of the details of witnesses after this in his notebook.[32]
Acting Brevet Sergeant Hayley Lee Milligan
[32] T 64-65.
Acting Brevet Sergeant Milligan said that she was on duty with Senior Constable Donnelly in a marked police vehicle travelling west on St Vincent Street around 11.20am when she noticed the traffic was banked up. She saw ten to fifteen people standing in the eastbound lane around the area of the pedestrian crossing.[33] She immediately got out of the police vehicle and ran over to the group and started rendering first aid to Ms Minerds.[34]
[33] T 68-70.
[34] T 70.
The weather was fine, sunny and cool and the road was damp.[35]
[35] T 70-71.
Ms Minerds was unconscious. Acting Brevet Sergeant Milligan put her in the recovery position and noticed there was a significant amount of blood on the ground underneath her head. The bleeding increased when she rolled her over, so she applied pressure with a cloth and towel that a member of the public provided. Ambulance officers arrived within two minutes. [36]
[36] T 71-72.
Whilst rendering first aid a member of the public collected a shopping bag from the roadway and a mobile phone and gave it to her.[37] She looked at the call logs on the phone to ascertain a next of kin. She took a photograph of the phone at the scene: Exhibit P5.[38]
[37] T 72-73.
[38] T 76.
Major Crash officers attended within an hour. After Ms Minerds was taken to the hospital, she spoke with witnesses at the scene and obtained their details.[39] When a second ambulance crew arrived, she asked them to check on the driver’s welfare. He did not require medical assistance.[40]
[39] T 78.
[40] T 79.

When she went over to the accused’s vehicle the engine was running.[41]
[41] T 80.
There was no cross-examination.
Yuviraj Marjara
Mr Marjara was a truck driver and drove prime mover semi-trailers.[42] As at July 2021 he had been doing that for about 3 years. On 28 July 2021, he was driving his truck on Port Road, and he was supposed to turn right onto St Vincent Street but saw a sign saying no right turn for trucks. He then turned left to find another way to get onto St Vincent Street.[43] He travelled along St Vincent Street in a westerly direction and then turned right onto Nelson Street and then left onto Nile Street.[44] He then turned left onto Torrens Place. He then turned left onto St Vincent Street and stopped behind a dark SUV, Suzuki, at the traffic lights at the intersection of Nelson and St Vincent Street.[45]
[42] T 91.
[43]   T 91-92.
[44]   T 94.
[45]   T 95.
He was in the left lane of two lanes. The light went green and for about three seconds the driver of the Suzuki was stationary before moving off. Mr Marjara was travelling at about 30km/h and the Suzuki was probably going 30 to 40km/h ‘not that fast’. Mr Marjara saw a red light but saw the Suzuki continue on.[46]
[46] T 97.
He did not see the lights turn red. He had started braking when the accident happened.[47] He was more than 50 metres from the lights when he first noticed the red light. The Suzuki was 30 to 40 metres ahead of him.[48] He did not see any brake lights illuminate. There were no cars between him and the Suzuki.[49] He saw the Suzuki stop in the pedestrian crossing.[50] Mr Marjara marked the location on photograph 3 in P2.[51]
[47]   T 98.
[48]   T 99.
[49]   T 100.
[50]   T 102.
[51]   T 102-103.
Mr Marjara did not see the lady before he got out of his truck. He was looking at the car in front of him.[52] When he got out, he saw a lady lying on the ground and he called an ambulance. He called the company for whom he worked, and they told him to wait until police arrived and to give his details.[53]
[52] T 103.
[53] T 103-105.
The weather was good. The road was clean and dry. Before the accident he did not notice any pedestrians or people on the footpath because he was concentrating on the Suzuki.[54] He did not see the lady before he saw her on the ground.[55]
[54] T 105.
[55] T 106.
In cross-examination, Mr Marjara agreed that he did not see the lady step off the kerb.[56] He was shown photographs of Torrens Street and the intersection of Nelson and St Vincent Street: Exhibit D6. He was not sure which of the two sets of lights at the intersection of Nelson and St Vincent Street he was stationary at behind the Suzuki.[57] Mr Marjara marked on D6 where his truck was, but he could not recall whether the Suzuki was right in front of him or at the next lights. He marked the two possible locations with circles.[58] He said the Suzuki was definitely stationary for 3 seconds when the light went green. He said he was 90% sure that it was more than 2.5 seconds. He was not sure if there were any other cars at that intersection.[59]
[56]   T 107.
[57]   T 108.
[58]   T 110.
[59]   T 111-112.
He did not recall seeing any cars parked on St Vincent Street before he stopped.[60]
[60] T 113.
I granted an application to recall Mr Marjara for further cross-examination as defence counsel indicated she had overlooked putting something to him. When further cross-examined, Mr Marjara agreed that in his statement to police on 15 August 2021 he did not say that he had stopped behind a dark coloured car at a red traffic light. He agreed that he told police that he was following a small dark coloured vehicle that was in front of his truck, also in the left lane. He was keeping a safe distance from this car, maybe 20-30 metres behind. He was not driving very fast because he had just turned the corner from Nelson Street.[61]
[61] T 136-137.
He omitted to mention to police that he had stopped behind that car at a red light because they did not ask him that question and he was more focussed on where the accident happened.[62]
Andre Satireyo
[62] T 137-139.
Mr Satireyo lived in Port Adelaide and worked in the council building on St Vincent Street. Around 11.20am on 28 July 2021 he was at the pedestrian crossing on his way back into the council building. He was on the opposite side of the council building. The weather was fair, and it was not raining.[63]
[63] T 116.
Mr Satireyo said that the pedestrian lights were operated by a button and there was a signal with a green man and a beeping noise and then a countdown before the sign turns red.[64]
[64] T 118.
When he was at the crossing there were a couple of people around him and two or three people on the opposite side. He took a few steps after the green pedestrian light came on and a lady started crossing and then a car hit her. He did not notice the car before it hit her.[65] From where he was standing, he could see that the traffic light on his left for cars turned from green eventually to red. He first noticed the lady when she was hit. She was a few steps into the inside lane, furthest from him, and she turned at the last second as the car was coming through.[66]
[65] T 119.
[66] T 120-121.
He could not recall if any of the other people on the other side had stepped into the lane at the time the lady did.[67] She was the first to step out. She was struck and the force of the impact resulted in her skidding on the road for a few metres and she landed in the middle of the road. He did not hear any braking sounds or noises from the car before she was hit but there was braking soon after she was hit.[68] The car stopped somewhere in the middle of the crossing, and she landed a few metres away from it.[69]
[67]   T 121.
[68]   T 122.
[69]   T 123.
Mr Satireyo did not think that the vehicle was speeding.[70] The lady landed and hit her head and blood came out. He went over there to check if she was okay and other people did the same. The driver got out of the car and appeared extremely upset and was in shock.[71] Police attended within minutes, and he gave them his details.[72]
[70]   T 124.
[71]   T 125.
[72]   T 126.
In cross-examination, Mr Satireyo said he was watching the scene in front of him as he was walking. He was 100% sure she crossed after the green pedestrian light came on.[73] When the light for green to cross came on, he stepped out immediately. In the time it took for him to take two or three steps he saw her being struck by the car.[74]
[73] T 127.
[74] T 129.
He could not recall how many cars there were at the time of the collision but there was one stationary at the lights on the side he was crossing. He said there were probably cars then backed up behind that car.[75] He thought there was a car stationary in the outside lane on the opposite side.[76] However he could not recall anything about that car and could not remember exactly if it was there at the time of the collision.[77]
[75]   T 129-130.
[76]   T 130.
[77]   T 131.
Mr Satireyo agreed that he told police, ‘I was about three steps onto the road when I saw an older lady walking south towards me’. However, he said she was ‘part of a scene…I noticed that she was there, but obviously she came into focus when she was hit.’[78] He agreed that prior to her being struck he was not focussing specifically upon her. She was the first to cross.[79]
Amien Kanj
[78] T 131, 19-27.
[79] T 131-132.
On 28 July 2021 he was driving with his parents to the Bank SA ATM on St Vincent Street Adelaide.[80] He parked his car in the disabled car park that can be seen in the photograph on page four of P1. He got out of the car, closed the door and was about to walk around to the rear passenger door when he heard a big shout, ‘Oh my God’ and he looked up and saw a lady hit by a car at the pedestrian crossing.[81]
[80] T 142.
[81] T 144-145.
At this time, he saw the green man visible at the pedestrian crossing and the traffic lights were red and there were cars stopped on his side of the road. When he first parked in the disabled carpark, he did not notice what light the pedestrian crossing was displaying. The first time he saw the green man was when he heard the words, ‘Oh my God’.[82] The cars started to bank up at the red light on his side of the road after he parked.[83]
[82] T 145.
[83] T 146.
Mr Kanj said the lady was about a quarter of the way into the lane closest to the kerb. He did not see anyone else on that side of the road.[84] He did not see anyone else crossing the road with her. There were people on the footpath walking to the crossing.[85] When the lady said, ‘Oh my God’ she had turned and put her hands out to her right and was facing the oncoming traffic. There was a big thump, and she was hit by a car and went flying about 2 to 3 metres and hit the road pretty severely. He did not hear any tyre noises.[86] The first time he saw the car was when it hit the lady. He ran back to the car to get his phone and then tried to wake her. He called 000. He was told to get some clothing and returned to his car to retrieve a cloth.[87]
[84]   T 146.
[85]   T 151-152.
[86]   T 147-148.
[87]   T 150.
Police arrived within 5 or 6 minutes. The driver of the car got out and appeared very shocked.[88] He got back in his car and moved it.[89]
[88] T 150.
[89] T 151.
Mr Kanj said the weather was fine and the road was dry.[90]
[90] T 151.
Mr Kanj marked photograph 3 of P1 to indicate the position of the lady on the roadway.
In cross-examination, Mr Kanj said he could not be sure when it was that the lady started walking from the start of the pedestrian crossing.[91] The cars banked up at the lights were behind the position that his car was in the disabled carpark.[92]
Jaide Randall-Hiscock
[91] T 153.
[92] T 154.
On 28 July 2021 Ms Hiscock was shopping at the Port Plaza Shopping Centre. Around 11.15-11.20am she left the Centre in her car. She turned left onto St Vincent Street. When she turned the corner, she saw the lights at the pedestrian crossing adjacent the council chamber turned from green to amber and then red. She stopped in front of the lights. She could not remember if she was first in line or whether there was a car in front of her. A few seconds after she had stopped, she was looking to her right while she was waiting.[93]
[93] T 155-158.
She had loud music on in her car and did not hear any beeping. She was there for about 10 seconds when she saw a lady crossing the road hit by a car.[94] She could not recall exactly where the lady was but said in the middle of the two lanes or in the first lane.[95]
[94] T 159.
[95] T 160.
After the car struck the lady, it stopped just after the pedestrian crossing on the right-hand side. A man got out of the car within seconds or a minute.[96] Police attended. She then looked for a place to park her car but could not find one. She later contacted the police to tell them what she had seen. The weather was partly cloudy, but it was dry.[97]
[96] T 162.
[97] T 163.
In cross-examination, Ms Hiscock said she could not remember if she had seen the lady stationary at the pedestrian crossing or had just seen her walking.[98] She could not recall what sequence the pedestrian traffic light was on when she came to a stop.[99]
Chansiri Suksri
[98] T 163.
[99] T 164.
Ms Suksri is an employee of the Department of Infrastructure and Transport and was employed in the traffic management centre. She had worked in that role since 2012. She was a team leader at the traffic system team. Her role includes the configuration of traffic signals in South Australia.[100]
[100] T 171.
Ms Suksri accessed stored data regarding the traffic signals at the pedestrian crossing out the front of 163 St Vincent Street Port Adelaide.[101]
[101] T 172.
Ms Suksri explained that traffic signals turn from green to amber to red and then to green. The time during which a traffic signal will display an amber light is fixed but the time during which it will display a green signal is variable depending on pedestrian and vehicle activation.[102]
[102] T 174.
A traffic signal will display an amber light for three seconds. At the pedestrian crossing at 163 St Vincent Street the default setting is a green light for vehicles. This changes when the button is pushed by a pedestrian.[103] When that occurs the light will turn from green to amber and remain on amber for three seconds before turning red. After being red for two seconds the walking signal for pedestrians will indicate green for 5 seconds and then there is a 15 second pedestrian countdown timer, 2 seconds of red before the traffic signal for vehicles turns green again.[104]
[103] T 175.
[104] T 176.
At this pedestrian crossing there were three separate sets of lights, but they all changed colour at the same time.[105] When a pedestrian pressed the button the time until the light turns amber depends on the detector which monitors traffic flow. It is variable, but the maximum time before the light turns amber is 120 seconds. Once the controller determines the light should turn to amber that is instantaneous.[106]
[105] T 177.
[106] T 177-180.
On 28 July 2021, the data revealed that at 11:20:14 the vehicle signal group changed from green to amber. At 11:20:17 the light went from amber to red. The green walk signal commenced at 11:20:19.[107] That signal stopped at 11:20:24.[108]
[107] T 181-182.
[108] T 182.
At 11:20:14 the disc traffic signals on Commercial Road were already red. They went from green to amber to red commencing at 11:19:52. The light was amber for 4 seconds from 11:19:52 to 11:19:56 and was then red until 11:20:38.[109]
[109] T 182-184.
At the Commercial Road intersection there were also right and left turn signals. The left turn signal went from green to red commencing at 11:19:00 and stayed red until 11:20:22. The right turn signal went from green to red commencing at 11:19:20 until 11:20:38.[110]
[110] T 184.
Accordingly, at the time that the green walking signal commenced at the pedestrian crossing, the traffic lights at Commercial Road intersection were red. The two sets of lights, at the pedestrian crossing and Commercial Road operate independently of each other.[111]
[111] T 185.
In cross-examination, Ms Suksri said she had not investigated the sequencing for the lights at the Nelson and St Vincent Streets intersection.[112]
[112] T 185.
Before the disc traffic lights on Commercial Road changed to amber at 11:19:52 they had been on green for 52 seconds. They were then red for 46 seconds. They then went green at 11:20:38. The left turn signal was red for 82 seconds between 11:19:00 and 11:20:22. The right turn signal was red for 78 seconds from 11:19:20 until 11:20:38.[113]
[113] T 186.
Before the left turn went red it was green for 15 seconds. Before the right turn went red it was green for 20 seconds.[114]
[114] T 187.
No faults were recorded at this site during the relevant period. The pedestrian lights had been there for a very long time but in 2019 the pedestrian crossing was changed from one where the pedestrians had to stop in the middle to one where they could walk across the road to the other side.[115]
Sergeant Mark Fulcher
[115] T 187.
Sergeant Fulcher gave expert evidence. His expertise was not challenged. Sergeant Fulcher had been a police officer for 37 years, 18 of which were in the Major Crash Investigation Section. He is currently in the Reconstruction and Technical Examination Unit of Major Crash.[116]
[116] T 194-195.
Sergeant Fulcher attended the scene of the collision on St Vincent Street and prepared a report of 33 pages with his findings: Exhibit P7.[117] When he attended the scene the weather was fine but cold and the edges of the road were damp with pools of water on the northern footpath. The road was bitumen and in reasonable condition.[118] He did not locate any tyre marks on the road surface. The lack of physical evidence of braking did enable him to draw any conclusion regarding the application of brakes.[119]
[117] T 195-196.
[118] T 197.
[119] T 199.
The accused’s vehicle had a small dent on the top of the bonnet.[120] Sergeant Fulcher said that after Ms Minerds was struck by the accused’s vehicle, she had wrapped onto the bonnet in a wrap trajectory. She landed in front of the vehicle, indicating that there was braking immediately before impact or immediately after impact.[121]
[120] T 201.
[121] T 203.
Sergeant Fulcher explained that the faster a vehicle is travelling at the time of impact with a pedestrian, the higher up the head strike will be. In a 60km/h collision the head will strike the windscreen.[122]
[122] T 204-205.
Sergeant Fulcher did not consider whether Ms Minerds was conspicuous or not to a driver in the accused’s position because the accused should have stopped on the red light.[123] For the same reason, he did not consider how far the accused’s vehicle was from Ms Minerds, how long she was on the road, and what the perception response time would have been depending on distance and speed travelled.[124]
[123] T 206.
[124] T 207-208.
Sergeant Fulcher calculated that the accused’s vehicle was travelling within a range of speed of 32km/h to 42km/h. As he did not know where the actual impact was, he could not say which end of the range was more likely.[125]
[125] T 208.
In cross-examination, Sergeant Fulcher said that the distance between the pedestrian light stop line and the stop line for the intersection of Commercial Road and St Vincent Street was 120 metres.[126]
[126] T 210.
Sergeant Fulcher agreed that there was a well-known phenomenon called the ‘see through effect’. It occurs when there are two sets of traffic lights within close proximity to each other. A driver’s focus can be on the set of traffic lights furthest away and as a consequence the driver fails to see the lights closest to him. Sergeant Fulcher agreed that it was a relevant factor to take into consideration when examining collision scenes. He said that it was a well-known theory in the reconstruction industry but was more of an engineering phenomenon.[127]
[127] T 210-211.
The report of Dr John Gilbert dated 16 September 2021 was tendered: Exhibit P8. That report confirmed that the cause of death of Ms Minerds was severe blunt head trauma.
Agreed facts
The following facts were agreed: Exhibit P9.
1.   Jaide Randall-Hiscock provided an affidavit to police in relation to this matter. As to her observations of the collision she told police that:
“The lady’s body was facing the SUV front on, and I saw her get hit by the car within the pedestrian crossing. Her legs and stomach hit the front of the bonnet and it appeared that her body folded over with her torso hitting the bumper and bonnet. The lady then fell back in a seated position, with her bottom first, before the force of the car pushed her back which extended her body; she fell flat, and her head hit the road.
She landed in the middle of the two traffic lanes but more the left lane; about two metres east of the crossing”.
2.   The accused was arrested on 28 July 2021. Following his arrest Brevet Sergeant Paul GRIFFITHS recovered the accused’s mobile phone from the vehicle. With the accused’s permission the phone was unlocked and reviewed by GRIFFITHS.
GRIFFITHS review determined that there was no call or text activity at the time of or directly before the collision. GRIFFITHS was satisfied that mobile phone use wasn’t a factor in the cause of the collision.
3.   The accused was interviewed by officers LOVELL and GRIFFITHS on 28 July 2021 where he provided his details and identified himself as the driver. Due to the accused’s inability to answer some questions, LOVELL and GRIFFITHS believe that he was not in an appropriate state of mind to be interviewed further in relation to the collision.
4.   Amien KANJ’s 000 call was made at 11:22:23am on 28 July 2021.
5.   Sergeant Mark FULCHER provided an addendum statement to clarify the comments on pg 24 of his Reconstruction Report that reads “There were no visible tyre marks within the collision scene that were attributed to the Suzuki Ignis, and no other physical evidence to indicate the vehicle was under emergency braking prior to or following the collision. However, witness accounts support the notion that the vehicle was braking immediately before, at, or immediately after impact” and whether he had taken into account the observations of MARJARA as to his observations of the vehicle at the time of impact.
FULCHER stated that his comments of “immediately before, at, or immediately after impact” was in relation to the milliseconds prior to and after impact. He was of the view that the dynamics of the crash and the descriptions of the collision by witnesses were consistent with the vehicle being braked at the very least in the milliseconds after impact. He further stated that a witness would not be able to discern whether the brakes were applied in the milliseconds before impact, if that were the case it would appear to a witness to be at or after impact. He interpreted MARJARA’s observations as meaning the brake lights did not illuminate in the seconds leading up to the collision.
6.   The Suzuki Ignis was examined by a SAPOL vehicle examiner. The examiner determined that the vehicle had been in a satisfactory condition prior to the collision, and they could not find anything mechanically wrong that could have contributed towards or caused the collision.
The defence case

The accused gave evidence in his own defence.
He is 61 years of age and had been married for 31 years. He and his wife have three children. Prior to 28 July 2021 he had been working as a mental health community outreach worker for Uniting Communities. He had been working in that capacity for ten years. On 28 July 2021 he was working in that role. His job involved lots of driving. His clients were those severely impacted by mental health issues, predominantly schizophrenia, bipolar disorder and severe depression. His duties included helping them set goals, maintain tenancy, adhere to medication requirements, take them to mental health clinics to obtain depot medication.[128]
[128] T 220-221.
The accused had been involved in a car accident many years ago when he was pushing his own car to the side of the road and another car hit his. The impact left him unconscious and after he recovered, he developed post-traumatic stress and had four years off work. He was prescribed Valium and then Effexor XR.[129]
[129] T 221.
On 28 July 2021, he woke up around 6.30am. He left home in Greenwith around 8.00am to travel to a client’s address at Osborne, arriving around 8.45am. he then took the client to the chemist to get his medication timer device restocked with medication. He went to a chemist on the corner of Port Road and Woodville Road. He was at the chemist for about half an hour. He then drove the client back to his home, spoke further with him and waited for his medication timer to go off. The client then took his medication. The accused left the Osborne address around 11.00am.[130]
[130] T 222-223.
The accused then drove towards Port Adelaide. He stopped at Joe’s Fruit and Vegetable Shop where cheap fruit and vegetables are sold. He often bought a bag of apples which he kept in the car for himself and clients. When he left the carpark, he discovered that the exit he normally used had roadworks on it, so he had to re-trace his steps. He ended up on Church Place.[131]
[131] T 223.
The accused was not familiar with the Port Adelaide area. He usually bypassed it. He had not been down St Vincent Street before. His next customer was at Woodville. He recalled a double set of traffic lights; the first as he turned right onto St Vincent Street and the second after that.[132] He was asked what he recalled about St Vincent Street that day:
Yeah, I remember coming through those lights and looking down St Vincent Street. It wasn’t a street I was familiar with. It was quite confusing. There seemed to be lights and stuff going on and there seemed to be a whole range of traffic lights down that way changing. I remember looking down at green lights.[133]
[132] T 224.
[133] T 225, 17-22.
The accused was shown D6 and said he had stopped at that intersection because the lights were red. When the lights turned green, he took off as per normal without delay and travelled at normal speed down St Vincent Street. He said there were lights that flashed the speed. He noticed a ‘whole range’ of traffic lights down St Vincent Street. He noticed traffic lights at the pedestrian crossing, but when he saw them they were green. He did not see them change colour. He was looking at the lights ahead. He then explained what happened next:
Yeah. As I say, by the time I released what had happened because I was looking up at those lights ahead, I remember seeing a woman who was actually, yeah, she was facing away from me and I tried to brake but apart from that there was nothing I could do and, yeah, I struck that lady. I stopped immediately. I saw she was getting help and I let them know that I was just going to move my car to safety, and I just stopped in shock and waited.[134]
[134] T 226, 33-38; T 227, 1-3.
The accused said he had a GPS navigation unit in his car, but he only ever used it as an auditory device to warn him of speed limit changes and if he was going over the speed limit. He was not using it at the time of the accident, but it could have been on. No addresses had been entered on it.[135] His next customer was at Woodville, and he was intending to turn right at Commercial Road which ‘would have probably got me to my next customer’.[136]
[135] T 227.
[136] T 228.
In cross-examination, the accused said he did not know the Port Adelaide area very well. He had never been on that stretch of St Vincent Street before.[137] He would go to Farmer Joe’s Fruit Barn when he was visiting a customer and driving through.[138]After seeing his client at Osborne he would come down Nelson Street onto Church Place into Farmer Joe’s and then exit in an area towards the bottom of the map in P1.[139]
[137] T 228.
[138] T 229.
[139] T 230.
The accused said that he did not know whether Commercial Street was the best exit for his next destination, but it seemed to be the only route available that was going to take him to Woodville.[140]
[140] T 230-231.
The accused said when the satellite navigation device was switched on it would make a dinging sound to tell him if he had gone slightly over the speed limit. He had never used it to find an address.[141] As he was driving down St Vincent Street the satellite navigation device did not give any auditory alert.[142] He was aware that the speed limit was 40km/h because he saw a sign that flashed ‘40’. He was travelling somewhere between 30km/h and 40km/h.[143]
[141] T 233.
[142] T 235.
[143] T 236.
The accused disagreed with the suggestion that there was a delay of two or three seconds before he took off at the lights on St Vincent Street after turning from Church Place.[144]
[144] T 236.
The accused said that there were quite a lot of lights on St Vincent Street. He recalled seeing the pedestrian crossing lights on green. He was concentrating on where the road went and focussing on the traffic lights at the Commercial Road intersection.[145] At the time he did not realise it was a pedestrian crossing but just noticed that there was a set of traffic lights.[146] The accused was not sure where he was on St Vincent Street when he saw that those lights were green.[147]He had no idea that he was going through a red light. He did not see them turn red.[148]There was no obstruction to his view as he travelled down St Vincent Street.[149]
[145] T 237-238.
[146] T 239.
[147] T 240.
[148] T 241.
[149] T 242.
The accused thought he was ‘looking through’ the pedestrian lights.[150]At this point he was thinking about whether it was safe to proceed or whether the lights at the Commercial Road intersection were changing and he would have to stop. He could not now recall what colour those lights were or how far from them he was.[151]They could have been red. He thought they were changing but he could not say one way or the other.[152]
[150] T 242.
[151] T 245.
[152] T 246.
When he first saw the female, she was not very far into the left-hand lane, but he could not say where she was because it all happened so fast.[153] She was in a position where he thought he was going to hit her with his car. His car was in the left-hand lane, and she was in front of him. He had not seen her as he approached the crossing and had not seen any other people crossing from the other side of the road.[154]
[153] T 247-248.
[154] T 249.
The accused said the woman turned towards him just before his car struck her.[155] He said:
All I can really answer is at some point I was looking at the lights ahead, at some point I saw a lady facing away from me. I applied my brakes.[156]
[155] T 252.
[156] T 253, 35-38.
It was put to the accused that he told Senior Constable Donnelly that he had been trying to find an address and had been in around the back of the supermarket and had gone down a street that way and you were coming back the other way. He said he was in shock and could not remember the exact words he used. All he could recall was that he had been to the supermarket and that there had been roadworks.[157]
[157] T 256-257.
The accused did not see the pedestrian crossing lights turn to amber and then red. He said it would be wrong for him to agree that he did not see this because he was not paying attention. He did not know what happened.[158]
[158] T 260.
As he was driving down St Vincent Street, he did not take notice of people on the side of the road or the shops. He was focussed on the road and was looking straight down it. He was focussed on what was in front of him.[159]
[159] T 263.
The accused said he used the Northern Expressway to get from Greenwith to Osborne. He saw the client at Osborne three days a week, usually alternate days.[160] When he went with this client to the chemist on the corner of Woodville and Port Road, he bypassed Port Adelaide.[161]He did not use St Vincent Street.[162] He avoided the main part of Port Adelaide because it was busy.[163]
[160] T 270.
[161] T 272.
[162] T 274.
[163] T 278.
In re-examination, the accused said he saw the green sign on page 2 of P2 with the words ‘St Vincent Street’ and an arrow, and ‘Commercial Road’, ‘City’ and an arrow pointing to the right. He used that sign to assist him in deciding where he would turn.[164]
[164] T 286.
Closing addresses
Prosecution
Mr Tate said that the issue in dispute was a narrow one – was the level of inattention so gross as to amount to dangerous driving. Mr Tate argued that the accused’s level of inattention went beyond a minor lapse in concentration.
Mr Tate conceded that there was no evidence to establish where the accused’s vehicle was at the time that Ms Minerds stepped onto the road. Mr Tate conceded that there was no evidence from which I could make a finding that the accused’s vehicle was in a position on the road such that Ms Minerds should have been visible to him, and he would have had time to avoid colliding with her. He agreed that whether his driving was dangerous would depend upon a characterisation of the accused’s failure to see the light go from green to amber to red and therefore not brake and stop at the pedestrian crossing.
Mr Tate said that the accused’s low speed meant he had more opportunity to make observations of his surroundings. Mr Tate urged me to accept Senior Constable Donnelly’s evidence that the accused said he was looking for an address. He said that this could not be discerned from listening to P4A. Mr Tate said that the accused was concentrating on finding his way out of the area rather than paying full attention to his surroundings.
Mr Tate said I should accept the evidence of Mr Satireyo and the other witnesses which established that Ms Minerds did not step onto the roadway until the green walking man was illuminated. Mr Tate said that Mr Marjara’s evidence of the accused’s delay in moving off at the lights was an item of circumstantial evidence capable of supporting a finding of inattention.
Mr Tate said that Ms Suksri’s evidence established that there were at least five seconds before the green walking man illuminated following the change of traffic lights to amber. Mr Tate conceded that there was no evidence of the distance a vehicle would travel if driven at a speed of 30km/h or 40km/h. Mr Tate said that I could find that the duration of the inattention was at least seven seconds. He said this was a significant period of time for a driver to be inattentive.
Mr Tate said that even if I accepted the accused’s evidence that he did not see the pedestrian lights because he was looking through them at the lights on Commercial Road, the inattention should still be characterised as gross inattention.
Mr Tate said that the accused was an unimpressive witness, and the reliability of his recollection was in question. He asked me to view with circumspection the accused’s evidence that he had never travelled down St Vincent Street. Even if that were the case, this should have made the accused more vigilant in paying attention to his surroundings.
Mr Tate said that St Vincent Street was an unremarkable and uncomplicated stretch of road. Mr Tate said that a driver in the accused’s position had a clear and unobstructed view of the traffic lights and at least a five second opportunity to stop before a pedestrian stepped out onto the roadway. Mr Tate said that it is not an ordinary risk of the road that a driver may not see a traffic light. In this case, the view afforded to a driver in the accused’s position, the time period during which the traffic lights changed from amber to red and the speed at which the accused was travelling in combination made his departure from the standard of care such that his driving was dangerous.
Defence submissions
Ms Armstrong referred me to the authority of R v Kamleh (1990) 51 A Crim R 435 and the exposition of the difference between driving without due care and driving in a manner dangerous. Driving in a manner dangerous is driving which a reasonable person in the position of the driver would realise would give rise to a serious risk of injury to members of the public going beyond the ordinary risks of the road.
Ms Armstrong said that the prosecution had not proved beyond reasonable doubt that the accused drove in a manner dangerous to the public for the following reasons:
1.There was no evidence from which a finding could be made as to the length of time over which the accused’s lookout was defective.
2.There was no evidence of the accused’s lookout at the time the traffic light changed from green to amber and then to red because the position of the accused’s vehicle on the roadway had not been proved. Mr Marjara did not see the lights turn from amber to red, he just saw them when they were red.
3.It is a reasonable possibility that Ms Minerds began walking prior to the green walking man illuminating, thus reducing the time period during which the lookout was defective.
Ms Armstrong said the prosecution case was a failure to maintain an adequate look out. She said I should hesitate in finding that the accused told Senior Constable Donnelly that he was looking for an address. He was in shock at the time. She said I should accept the accused’s evidence that he was looking through the pedestrian lights to the lights ahead and that this provides an explanation for his inattention. She referred to Mr Marjara’s evidence that he did not see Ms Minerds until he got out of his truck. This simply demonstrated that when a driver is concentrating on a particular aspect of the roadway, he may not observe others.
Ms Armstrong said that the accused’s evidence that the road was confusing was supported by the view of the scene and the photographs in D6. The accused did not see the red light but this departure from the standard of care did not amount to gross inattention such as to establish driving in a manner dangerous.
Findings of fact on undisputed matters
I find the facts in P9 proved. I make the following findings of fact on the unchallenged or agreed evidence led at trial.
1.Just before 11.20am on Wednesday 28 July 2021, the accused was driving a Suzuki Ignis in a north-easterly direction in the left-hand lane on St Vincent Street Port Adelaide.
2.Immediately before travelling on St Vincent Street, the accused had driven along Church Place and turned onto St Vincent Street stopping at the traffic lights at the intersection of Nelson Street and St Vincent Street. The traffic lights were red at the time.
3.At around 11.19am, Denise Minerds left the council chambers on St Vincent Street. At around 11.20am Denise Minerds was on the footpath in the vicinity of the pedestrian crossing on St Vincent Street intending to cross from north to south.
4.That pedestrian crossing on St Vincent Street has three sets of traffic lights. All are controlled by a button designed to be pushed by pedestrians wishing to cross. The default setting for the crossing is a green light for traffic. When the button is pushed the light will turn from green to amber and remain on amber for 3 seconds before turning red. The light is red for two seconds after which the walking signal for pedestrians (“the green walking man”) illuminates for 5 seconds and there is a 15 second pedestrian countdown timer. At the expiry of those 15 seconds the lights will remain red for two seconds before turning green for vehicles.
5.On 28 July 2021 at 11:20:14 the pedestrian crossing traffic light turned from green to amber. At 11:20:17 the pedestrian crossing traffic light went from amber to red. The green walk signal commenced at 11: 20:19 and stopped at 11:20:24. The pedestrian countdown ended at 11:20:39 and a ‘don’t walk’ sign was illuminated for 2 seconds until 11:20:41. The traffic light then turned green for vehicles. The lights were operating correctly without fault on 28 July 2021.
6.The disc traffic lights at the intersection of Commercial Street and St Vincent Street for vehicles travelling east on St Vincent Street operate independently from the lights at the pedestrian crossing. These disc traffic lights went from green to amber at 11:19:52. At 11:19:56 the traffic lights went red. They remained red until 11:20:38. The left hand turn arrow light went from green to amber at 11:19:00 and at 11:19:04 went red and remained red until 11:20:22. The right hand turn arrow light turned amber at 11:19:20 and was red from 11:19:24 until 11:20:38.
7.Before the disc traffic lights at the intersection of Commercial Street and St Vincent Street turned from green to amber, they had been green for 52 seconds. Before the left turn signal went from green to amber it was green for 15 seconds. Before the right turn signal went from green to amber it was green for 20 seconds.
8.At some time between 11: 20:19 and 11:20:24 Ms Minerds had stepped onto St Vincent Road from a point on the footpath entrance to the pedestrian crossing for pedestrians travelling in a southerly direction. She was struck by the accused’s vehicle somewhere within the 5m x 2m area depicted in photograph 3 of P2. At the time she was struck the traffic light for vehicles was displaying a red signal. She was struck in about the centre of the front of the accused’s vehicle.
9.The actual speed of the accused’s vehicle at the time of the collision cannot be determined. The accused’s vehicle was travelling at a speed in the range of approximately 32km/h and 42km/h immediately prior to the collision, but based on the accused’s evidence and witness accounts, I find that the accused was travelling under the speed limit of 40km/h at the time of the collision. The accused applied the brakes immediately before his vehicle struck Ms Minerds.
10.Ms Minerds died from severe blunt trauma to her head as a result of being struck by the accused’s vehicle and then hitting her head on the road surface. The accused’s manner of driving was the cause of her death.
11.The accused was not using or handling a mobile telephone or satellite navigation device at or immediately before the collision. The accused was not affected by drugs or alcohol. There was nothing mechanically wrong with the accused’s vehicle that contributed to the collision. It was a condition of the accused’s licence that he wear corrective lenses. He was wearing contact lenses at the time of the collision.
Assessment of witnesses and further findings of fact
Police witnesses
I accept the evidence of Brevet Sergeant McLoughlin. Her evidence was not challenged. I accept the evidence of Senior Constable Milligan. With the exception of his recollection of the conversation with the accused, I accept the evidence of Senior Constable Donnelly.
In evaluating Senior Constable Donnelly’s evidence that the accused told him he had been looking for an address, I have taken into account the fact that he made no notes of this conversation from which he could refresh his memory. The only aspect of the conversation he noted was the fact that the accused said, ‘wasn’t there one minute, was there the next’. Senior Constable Donnelly did not make any further notes because he was concerned to obtain the details of witnesses before any of them left the scene. Further, I have carefully reviewed P4A to determine what, if anything, of the conversation I can hear. Based upon that review, and noting that it is the best evidence of the conversation, I am satisfied that the accused said the following to Senior Constable Donnelly regarding his movements immediately before the collision:
I went that way through the supermarket to get out and it was all blocked off and then I have come back through this way…to get through that way and what can I say she wasn’t there one minute, and she was there the next.

I reject the evidence of Senior Constable Donnelly that the accused said anything about looking for an address. I accept the evidence of the accused that he was planning to attend a client’s address at Woodville and was well familiar with that address.
I accept the evidence of Sergeant Fulcher, and the contents of his report, P7. He was well qualified to express the opinions he did in the report and in his evidence. However, his evidence did not include any opinion regarding the following matters:
1.The location of the accused’s vehicle at the following times: when the pedestrian traffic light went from green to amber at 11:20:14; when it went from amber to red at 11:20:17 and when the green walking man signal illuminated at 11:20:19.
2.The location of the accused’s vehicle at the time Ms Minerds stepped onto St Vincent Street and the distance between his vehicle and Ms Minerds and the time period, if any, during which the accused had an opportunity to take evasive action taking into account reaction time.
3.The distance per second that the accused’s vehicle would have travelled if travelling at a speed of 32km/h and 42km/h and each kilometre increment in between.
Civilian witnesses
I formed the impression that each of the civilian witnesses was doing his or her best to tell the truth.
I do not consider anything turns on the difference between the evidence of Mr Marjara regarding the 2-3 second delay between the accused moving forward from the Nelson Street and St Vincent Street intersection when the light turned green and the accused’s evidence that he moved without delay. The estimated delay is short, and I take into account the subjectivity of each driver’s perception and the likelihood that the passage of time may have influenced their respective memories of what was, at the time, an inconsequential event.
Even if there was a delay of 2-3 seconds, that evidence is not relevant to an evaluation of the accused’s subsequent failure to see the pedestrian lights turn from green to red. A short delay before moving off on a green light is consistent with the actions of a prudent and careful driver. A short delay may also be consistent with the briefest of moments of looking away from the lights at the time that they changed from red to green. Such evidence does not provide a foundation to infer that the accused was not paying attention to his surroundings at that point in time.
I consider it noteworthy that Mr Marjara did not see the pedestrian crossing lights turn from green to amber and that he had not seen Ms Minerds at all prior to the collision. This is an example of a driver concentrating on aspects of his surroundings to the exclusion of others. He estimated that the accused’s vehicle was 20 metres from the lights at the time Mr Marjara noticed they were red. However, that evidence does not enable me to make any finding about where the accused’s vehicle was at the time Ms Minerds stepped out onto the roadway.
I found Mr Satireyo to be an impressive witness. I accept his evidence that Ms Minerds was the first person to cross, she was only a few steps into the inside lane and that when he saw her, the green walking signal was on. I accept his evidence that Ms Minerds was struck within the time frame it took him to take 2-3 steps.
I accept the evidence of Mr Kanj. He did not see Ms Minerds step out into the crossing and only saw her as she was being struck by the accused’s vehicle.
I accept the evidence of Jaide Randall-Hiscock, although her evidence of the time at which she was stationary at the pedestrian crossing was an estimate only and I have not relied upon it, and she could not say what sequence the pedestrian traffic light was on when she came to a stop. Further, she was unable to recall if she had seen Ms Minerds in a stationary position or only when she had been walking.
On the evidence of the civilian witnesses, I cannot be satisfied that there were any other vehicles stationary in the right-hand lane for north-east bound vehicles at the pedestrian traffic lights at the time the accused travelled into the crossing and struck Ms Minerds. In other words, the evidence does not establish that there were stationary vehicles that might have been an additional alert to the accused that the traffic lights were red.
It is not possible on the evidence to make a firm finding that Ms Minerds did not step out onto the roadway until after the green walking man signal illuminated. She may have done so at the exact moment it illuminated or milliseconds beforehand in anticipation of that occurring. Whatever the case may be, she is not at all at fault as there is no doubt that the traffic light for vehicles travelling in the same direction as the accused was red at the time she stepped out onto the roadway.
Traffic signal evidence
The evidence of Ms Suksri was not challenged, and I accept it in its entirety.
The accused.
I formed the impression that the accused was doing his best to recall the events of 28 July 2021. I accept his evidence, supported as it is by the evidence of Sergeant McLoughlin, that he was not using his satellite navigation device immediately before or at the time of the collision. I accept his evidence that he had never travelled down St Vincent Street before. It is unremarkable and entirely plausible that an Adelaide resident may have never travelled down St Vincent Street. It is a terrible twist of fate that on this occasion, his usual exit from the shopping precinct in which Farmer Joe’s Fruit and Vegetable Barn was located was blocked by road works.
I accept the accused’s evidence that upon seeing the roadworks, he backtracked along Church Place and decided to turn down St Vincent Street to find an exit that would take him to his next destination. I am satisfied that he had a general idea of the direction he should be going to get to the Woodville address but was not entirely sure whether he should be turning right at the Commercial Street and St Vincent Street intersection.
The accused’s evidence that St Vincent Street was ‘confusing’ in so far as it had a number of traffic lights and there ‘was stuff going on’ was a plausible impression for a person unfamiliar with St Vincent Street to have. My impression of St Vincent Street from a view of the scene looking northeast towards the pedestrian crossing was that it was a ‘busy’ road, with a number of signs along the footpath, including parking signs, speed limit signs, information and street name signs, trees, buildings, parked cars, pedestrians and two sets of traffic lights within close proximity of each other. There were a multitude of things for a driver in the accused’s position to look at when driving down St Vincent Street.
I accept the accused’s evidence that he did not see the pedestrian traffic lights turn from green to amber and then to red and that he did not realise it was a pedestrian crossing. I accept his evidence that, when he last looked at them, they were green. The evidence of Ms Suksri establishes that they were green prior to 11:20:14 but she did not give evidence of the duration over which they had been green. Ms Suksri did not have available to her the time at which the red traffic light at the Nelson Street intersection for vehicles travelling north-east along St Vincent Street went green. Accordingly, it is not possible to determine the time that elapsed between the accused moving forward from those lights and the pedestrian traffic lights turning amber. The distance between the stop line at that intersection and the stop line at the pedestrian crossing was also not the subject of evidence.
I also accept the accused’s evidence that, although he was looking at the road ahead, he was looking through the pedestrian lights towards the lights at the intersection of Commercial Road and St Vincent Street. I find that this was because his concentration was focussed on the prospect of turning right onto Commercial Road in order to get to his destination. I infer from the fact that he was still in the left-hand lane that he had not yet decided whether he would be turning right at that intersection and was probably considering this question as he drove along the road.
There is no evidence from which I can make a finding regarding the time period, if any, that Ms Minerds was waiting at the pedestrian crossing before the lights turned to amber and then red. There is no evidence as to when or by whom the pedestrian crossing button was pushed and whether that was pushed by someone on her side of the road or the opposite side of the road.
There is no evidence from which I can make a firm finding as to Ms Minerds’ visibility or conspicuity[165] to a driver in the accused’s position. Mr Marjara did not see her until after the collision. He was in a large truck with a cabin that was high up and would have had a better view than a person driving a motor vehicle. There was no evidence as to the number of cars, if any, parked on the left-hand side of St Vincent Street as the accused approached the pedestrian crossing that might have obscured his view of pedestrians on the footpath in the vicinity of the crossing.
[165] These terms were explained in the report of Sergeant Fulcher: P7. Visibility is the degree to which an object is visible to the naked eye without the aid of any form of instrument. Conspicuity is how easily an object is noticed, how obvious it is to the eye or attracts the eye’s attention by being unusual or unremarkable compared to its surroundings. Objects may be visible but not necessarily conspicuous.
Sergeant Fulcher was of the opinion that whether Ms Minerds was conspicuous or not was irrelevant because the traffic signal for vehicles travelling in the accused’s direction of travel was red. In other words, it was irrelevant because, in his view, the fault with the accused’s driving was failing to see the red light rather than failing to see Ms Minerds.
On the accused’s evidence and the other evidence which I have accepted and upon which I am prepared to act, it is a reasonable possibility and highly likely, that the accused was in close proximity to the stop line of the pedestrian crossing when Ms Minerds stepped out onto the roadway. This is consistent with the accused’s recollection of Ms Minerds not being there ‘one minute but there the next’. The evidence establishes that Ms Minerds noticed the accused’s vehicle just before the collision as she had turned towards it and exclaimed. The evidence establishes that the centre of the accused’s vehicle struck Ms Minerds. The north-south length of the impact area was only 2 metres. By reference to P3, and the evidence of the area of impact, the maximum distance Ms Minerds could have traversed before being struck was approximately 3 metres although that is unlikely given the evidence of the eyewitnesses and the damage to the accused’s vehicle. On the evidence, I find that she took no more than three steps onto the roadway and likely only two steps before being struck. I find that the accused applied his brakes immediately before impact because he had seen Ms Minerds on the road in front of him.
There is no evidentiary foundation from which I could conclude that the accused’s defective lookout included failing to see Ms Minerds on the roadway at a time when his vehicle was at a distance where a reasonable person in his position would have seen her and had the time to take evasive action (braking) to avoid a collision.
Accordingly, I am satisfied that the accused’s lookout was defective solely because he failed to see the pedestrian lights had changed to red. The period over which the lights went from amber to red was 3 seconds and they were red for 2 seconds before the green walking man illuminated. The prosecution has not excluded the reasonable possibility that Ms Minerds stepped onto the roadway when the accused’s vehicle was then in a position where he was unable to avoid a collision, notwithstanding his relatively slow speed.
I accept the accused’s plausible explanation for his defective lookout. That explanation was that, although he was looking in the direction of the traffic lights and therefore ought to have seen they had turned red, he did not do so because his attention was focussed on the traffic lights at the Commercial Road and St Vincent Steet intersection. Both sets of lights were within close proximity of each other. Having attended the scene, I am satisfied that a reasonable person in the position of the accused could have made this mistake.
Accordingly, the question to be answered is whether the prosecution has proved that the accused’s failure to notice that the pedestrian lights had turned amber and/or red at some time during a period of less than 7 seconds and probably around 5 seconds, was driving in a manner dangerous to the public.
Dangerous driving and driving without due care
The accused has admitted that he drove without due care and therefore caused the death of Ms Minerds. Driving without due care occurs whenever there is a departure from the standard of care expected of a reasonably prudent driver in the position of the accused as appropriate to the circumstances.[166]
[166] Police v Melisi (2010) 106 SASR 105.
However, to prove that the accused drove his vehicle in a manner which was dangerous to any person, the prosecution must prove beyond reasonable doubt that the act of driving was such that a reasonable person in the situation of the accused would recognise the driving as dangerous, in that it involved a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public.
The consequences of the accused’s driving, whilst devastating and catastrophic for Ms Minerds and her family, as a matter of law, do not play a role in the objective assessment of the driving itself and whether it constitutes driving in a manner dangerous or driving without due care. That qualitative assessment must be determined by reference to the evidence of the manner of driving and the circumstances in which it occurred.
The difference between dangerous driving and driving without due care was articulated in the classic statement by Napier CJ in 1953 in his directions to the jury in R v Duncan:
I think that the distinction between these two offences is best explained by pointing out to you that all – or at any rate most – of us are liable at times to do things that we ought not to do, and to leave undone things that we ought to have done. When we use the public highway, we must expect to meet people like ourselves – people who are only human beings – with the human tendency to depart, at times, from the full standard of care and skill. That, you may regard as negligence – “driving without due care and attention” – but, nevertheless as an ordinary “risk of the road”. If it is a case of “You today, and me tomorrow”, we have to accept the risk as one of the ordinary incidents of modern life. If we live in an age of aeroplanes and fast-moving traffic, we have to take things as they are – the thick with the thin, and you the pedestrian today and tomorrow the driver, are to say where the line should be drawn between a mere lapse from due care and attention and conduct which is plainly blameworthy.
If it is the sort of thing that any of us might be liable to do – although we might be sorry for it afterwards – you may regard it as driving without due care and attention, but, nevertheless, as an ordinary – and in one sense a necessary – risk of any road on which vehicles are driven by ordinary people like ourselves, people who mean well, but sometimes make mistakes. But over and above that, it must be a matter of common knowledge that there are some people who – at times – impose on other users of the road a risk which is by no means a fair or necessary risk of the road. They drive in a manner which imposes upon other users of the road a risk which any reasonable person, in the situation of the driver, ought to recognise as a real danger to the public. That, gentlemen, is what I think this information means, when it charges the accused with driving in a manner dangerous to the public. I refer to the sort of risk which is in no sense and ordinary or necessary risk of the road, and to a manner of driving which is treated as a fairly serious crime.[167][Emphasis added]
[167] See Note at conclusion of R v Mayne [1975] 11 SASR 583.
In R v Coventry,[168] 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.[169]
[168] (1938) SASR 79.
[169] Ibid 86.
The Court went on to state:^[170]
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.
[170] Ibid 87.
On appeal to the High Court, the majority observed:[171]
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.
[171] R v Coventry (1938) 59 CLR 633 at 638 – 639.
In a separate judgement, Starke J stated:[172]
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]
[172] Ibid at 639.

In R v Kamleh,[173] 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. [Emphasis added]
[173] (1990) 51 A Crim R 435 at 436-437.
In Jiminez v R,[174] 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.
[174] (1992) 173 CLR 572 at 579.
Analysis and conclusion
On the whole of the evidence, I am satisfied that the accused’s lookout was defective. He did not notice the pedestrian lights change from green to amber and then red at any time during the period of 5 seconds over which this occurred and before Ms Minerds stepped out into the roadway. Had he been exercising due care and attention he would have noticed at some point prior to reaching the crossing that the pedestrian lights had changed. However, there was an explanation for his defective lookout. His attention was focussed upon the lights at the intersection of Commercial Road and St Vincent Street. Given the proximity of the respective traffic lights and the destination address, this is a plausible explanation for his defective lookout.
A driver may not notice a traffic light change to amber at the precise time that this occurs, because he may be, for example, looking in his rear vision or side mirror, or scanning the road or looking at a street sign. However, the period of time that elapses between a light turning amber and then red is sufficient to alert a driver driving with due care and attention to the need to slow and stop. Accordingly, the obligation is to be driving with sufficient care and attention to be able to discern a change in traffic lights at a time when an appropriate decision regarding the action to be taken can be made and implemented. In most cases, that will be to slow and stop the vehicle.
Accordingly, the gravamen of the accused’s departure from an appropriate standard of driving was his failure, by reason of a defective lookout, to notice that the lights had turned red.
The evidence establishes that the accused’s lookout was defective because he did not notice the lights had turned red. There was a reason for this which serves to explain, but not excuse his defective lookout.
The accused was not exceeding the speed limit, was not affected by alcohol or drugs and was not distracted by the use of a mobile phone or any other device. There were no other deficiencies in his manner of driving.
The accused’s manner of driving was in the category of a common human failing. It was an ordinary, humanly understandable departure from the strict standard of care, notwithstanding the catastrophic and devastating outcome.[175] The prosecution has not proved beyond reasonable doubt that there was any aspect of the accused’s driving that subjected 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.
[175] For other examples of a driving without due care constituted by a defective lookout, including failing to see a red traffic light, see McCandless v Police [2021] SASC 98, Bliss v R (1993) 173 LSJS 256, R v Lenarczyk [2015] SADC 95, Sprigg v Police [2011] SASC 10, Fritsch v Police [2012] SASC 54, Wimmer v Police [2013] SASC 95, Thiele v Police [2009] SASC 159, Police v Jachmann [2010] SASC 345 and Nagy v Police [2018] SASC 141.
Verdict
I find the accused not guilty.
The accused has pleaded guilty to the alternative offence of aggravated driving without due care and therefore it is not necessary to deliver a verdict on the alternative charge.