R v Farrer
[2016] SADC 49
•17 May 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FARRER
Criminal Trial by Judge Alone
[2016] SADC 49
Reasons for the Verdict of His Honour Judge Barrett
17 May 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES
The defendant is charged with aggravated causing death by dangerous driving and leaving the scene of an accident after causing death. She collided with a cyclist on a straight stretch of road. The cyclist was riding alone close to the left of the road. Daytime road and weather conditions were perfect. The accused's blood was found to have contained methylamphetamine. The accused did not stop after the collision.
Held:
The accused's failure to see the cyclist amounted to driving in a dangerous manner. The aggravating factor of the presence of methylamphetamine is proved - Count 1 - Guilty
The accused has not made out a defence to Count 2 that she was unaware that someone had been injured - Count 2 - Guilty
Criminal Law Consolidation Act 1935 s 19AB(1); Road Traffic Act 1961 s 43; Summary Offences Act 1953 s 79A, s 74D, referred to.
R v Lobban (2000) 77 SASR 24; Hill v Baxter [1958] 1 QB 277; Jiminez v R (1992) 173 CLR 572; R v Horscroft [2009] SADC 125, considered.
R v FARRER
[2016] SADC 49
The accused is charged with aggravated causing death by dangerous driving contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 and leaving the scene of an accident after causing death contrary to s 19AB(1) of the Act.
The amended particulars of count 1 are as follows:
Samantha Magdaleine Farrer on the 27th day of December 2013 at Lower Inman Valley, drove a vehicle in a manner dangerous to the public and by that conduct, caused the death of Kathleen Marie Heraghty.
It is further alleged that Samantha Magdaleine Farrer drove that motor vehicle in convention of section 47 BA of the Road Traffic Act 1961, and that she drove while Methylamphetamine was present in her blood.
The particulars of count 2 are:
Samantha Magdaleine Farrer on the 27th day of December 2013 at Lower Inman Valley, drive a vehicle without due care or attention and by that conduct, cause the death of Kathleen Maree Heraghty and failed to satisfy the statutory obligations of a driver of a vehicle in relation to the incident.
It is alleged that at about 10.40 am on 27 December 2013 the accused was driving a Holden sedan along Inman Valley Road in the direction of Victor Harbor. She collided into the back of a bicycle being ridden in the same direction by the deceased Ms Heraghty. The cyclist was killed in the collision. It is alleged that the accused was driving with methylamphetamine in her blood. It is alleged that the accused’s manner of driving was dangerous in that she failed to keep a proper lookout. The deceased and her bicycle should have been perfectly visible to the accused on that stretch of road at that time. There was nothing to obstruct her view.
Having collided with the victim, the accused drove on. She was later stopped by police at about 11.30 am on the Southern Expressway as she was driving back towards Adelaide. She told police she hit a post.
A blood sample was taken from her at 12.57 pm. The sample contained 0.43 milligrams of methylamphetamine per litre, and smaller quantities of other drugs which may be either ingredients of prescribed medications or ingredients of the manufacture of methylamphetamine. In either event, the small quantities of the other drugs are immaterial.
Ingredients of charges
Count 1 – aggravated causing death by dangerous driving.
The prosecution must prove beyond reasonable doubt the following ingredients:
1.The accused drove the car at the time of the collision. This ingredient is not in dispute.
2.The accused drove in a manner which was dangerous to the public. If the accused was asleep at the time of the collision she cannot be said to be driving at the time. In those circumstances the prosecution must prove beyond reasonable doubt that before she fell asleep she was driving in a manner which was dangerous to the public. This ingredient is disputed.
3.The accused, by her manner of driving, caused the death of Ms Heraghty. The accused does not dispute that Ms Heraghty was killed in the collision.
To make out the offence charged the prosecution must prove beyond reasonable doubt the aggravating factor, namely, that at the time of the collision the accused had methylamphetamine in her blood. The aggravating factor is disputed.
Count 2 – leaving accident scene after causing death by careless use of vehicle.
The prosecution must prove beyond reasonable doubt the following ingredients:
1.The accused drove the vehicle at the time of the collision.
2.The accused drove without due care or attention. This ingredient is in dispute.
3.The accused’s driving caused the death of Ms Heraghty.
4.The accused failed to satisfy her statutory obligations as a driver. Pursuant to s 43 of the Road Traffic Act 1961 those statutory obligations are to stop immediately, give all possible assistance and report to a police station within 90 minutes. This ingredient is in dispute in the sense that the accused disputes knowing she had killed or injured someone and that that lack of awareness was reasonable in the circumstances.
Witnesses
The prosecution called the following witnesses:
·Mr Robert Peters who had been cycling behind the victim before the collision.
·Police Officers Brown, Kuchenmeister, Knight, Bakker and Threadgold.
·Mr David Repanich, owner of and passenger in the vehicle driven by the accused.
·Professor Jason White.
The prosecution tendered agreed facts and exhibits.
The accused did not give evidence but called Dr Michael Robertson.
Circumstantial case
The prosecution case against the accused relies on circumstantial evidence. In those circumstances the prosecution must exclude any rational hypothesis consistent with the accused’s innocence in respect of each count.
The collision
The circumstances of the collision now appear uncontested. At about 10.40 am the victim was cycling along Inman Valley Road. The point of the collision is on a straight, level stretch of bitumen road extending about 950 metres from the intersection of Inman Valley Road with Back Valley Road.[1] It was a fine sunny day. The road was dry. The deceased had a flashing red light under the back of her bike seat.
[1] Google map Exhibit P2 and photographs Exhibit P1.
The victim was clearly visible to another lone cyclist, Mr Peters, who turned right on to Inman Valley Road from Back Valley Road. When Mr Peters turned into Inman Valley Road the deceased was about 300 metres south-east of him. He decided to see if he could catch up with her. For the most part he had his head down as he pedalled after her. He looked up at one stage and saw only a vehicle in front of him some 200 to 250 metres ahead. The vehicle was travelling about the same speed as he was, ie about 25 to 30 metres an hour. He had not noticed the vehicle go past him but it must have done so. The vehicle then accelerated off and drove away. He could no longer see the cyclist. As he kept going he saw the unconscious victim and her bike in the grass verge at the side of the road. Plainly he had seen the accused’s vehicle, notwithstanding that he described it to police as a black Chrysler. There is no dispute that the accused was driving the dark blue Holden which collided with Ms Heraghty.
When Mr Peters reached the victim, he stopped and hailed down traffic to render assistance and call for Emergency Services. The ambulance was dispatched at 10.44 am and arrived at the scene at 10.53 am.[2] Ms Heraghty died at the scene without recovering consciousness.
[2] Exhibit P16, Agreed fact 1.
A major crash investigator, Sergeant Jonathon Brown arrived at the scene after 12 noon. His recordings were interpreted by Sergeant Kuchenmeister, the senior technical examiner in reconstruction with Major Crash. The bicycle’s tyre marks on the road after the point of impact confirm Mr Peters’ earlier description of the cyclist as progressing along the road close to the white edge line.' The damage to the vehicle makes it clear that the left front of the vehicle’s bumper bar collided with the bike’s rear tyre. The cyclist was thrown back over the left of the vehicle’s bonnet, hitting and shattering the left of the windscreen and hitting with her helmeted head the roof of the vehicle just above the front A-pillar. The deceased was then propelled forward and off the vehicle on to the grass verge. There is no evidence of the vehicle braking before the collision. The vehicle simply ran into the cyclist who was riding close to the left side of the road. The accused completely failed to see the cyclist and completely failed to take evasive action. There was nothing about the road or the traffic to prevent her steering around the cyclist. She must have done just that to avoid colliding with Mr Peters whom she must have passed moments earlier.
Sergeant Kuchenmeister calculated that the Holden was travelling at between 50 and 60 kilometres an hour at the time of the collision. The speed limit for that location was 100 kilometres an hour.
The accused had filed a r 49 notice seeking the exclusion of Kuchenmeister’s proposed evidence. I say “proposed evidence” because I have not read any statement or report of Kuchenmeister. Being a trial by judge alone, I did not read before trial, or at all, any of the materials not tendered during the trial. The accused objected first to the prosecution leading evidence to the effect that “the vehicle was braking at or just before the impact”. If that had ever been asserted by Kuchenmeister, or anyone else, no prosecution witness gave evidence to that effect. Kuchenmeister said that there was no evidence of braking. He could not tell whether or not the Holden had braked.
The second defence objection was to any evidence being led by the prosecution as to estimates of the impact speed of the Holden derived from “Searle Equations” or “Throw Equations”.
As a result of the above objections it was agreed that I should hear the evidence of Sergeant Kuchenmeister, and the foreshadowed evidence of the defence expert, Mr Aust, on a voir dire. If I ruled the impugned evidence admissible, a mechanism would be worked out to receive the evidence in the trial without repeating it. If the evidence was to be excluded, I would ignore what I had heard on the voir dire.
In the event, Sergeant Kuchenmeister said in examination-in-chief that there was no evidence that the vehicle braked at all.[3] In cross-examination Mr Aitken merely invited Sergeant Kuchenmeister to confirm that evidence, which he did.
[3] T280, T282.
In respect of the speed estimation, Mr Aitken cross-examined Sergeant Kuchenmeister in some detail about the calculations he had used to come to his estimate of speed. Towards the end of the cross-examination of Kuchenmeister, after the completion of another witness who had been interposed, I asked Mr Aitken if Kuchenmeister’s estimate of speed, being between 50 and 60 kilometres per hour, was really in dispute. Mr Aitken said his cross-examination would not take much longer.[4] Shortly afterwards he withdrew the applications pursuant to r 49.[5] Mr Aust did not give evidence.
[4] T314.
[5] T316.
In his address Mr Aitken relied on the absence of evidence of braking and the estimate of the accused’s speed at impact being of the order of 50 to 60 kilometres an hour.
The transcript of Kuchenmeister’s evidence on the voir dire was tendered as Exhibit P19 in the trial.
Finally on the topic of speed, I accept the evidence of Mr Peters that when he looked up from his pedalling and saw the vehicle some distance from him, it was travelling at about the same speed as he was, viz 25 to 30 kilometres an hour. I infer from that evidence that he was there observing the vehicle almost immediately after the collision, although he was not at that moment aware that there had been a collision. I infer that, either as a result of the collision, or as a result of post-impact braking, or both, the Holden’s speed reduced from 50 to 60 kilometres an hour to 25 to 30 kilometres an hour before it accelerated and left the scene.
The prosecution case
The prosecution case in respect of count 1 is that the accused drove in a manner dangerous to the public in that she grossly failed to keep a proper lookout. She simply did not see the cyclist in circumstances where the cyclist was perfectly visible. A possible explanation for her so grossly failing to keep a proper look out, is that her ability to drive was significantly impaired by the ingestion of methylamphetamine. If, as the defence contends may have been the case, the accused was momentarily asleep at the point of impact, then she must have been aware before that point that she was liable to do so following the ingestion of methylamphetamine and fatigue caused by lack of sleep.
The prosecution case is that, even if the accused had not taken the drug before the collision, her failure to keep a proper look out was, in the circumstances, driving in a manner dangerous to the public. It would be necessary however to prove the ingestion of the drug before the collision to prove the aggravating factor.
In respect of count 2, the prosecution’s case is that in failing to keep a proper lookout the accused drove without due care or attention and that driving caused the death of Ms Heraghty. Knowing that she had had a collision the accused failed to satisfy her statutory obligations as a driver to stop and render assistance and report to police.
The defence case
The defence case in respect of count 1 is that the prosecution has failed to prove that the accused failed to keep a proper lookout. More particularly the prosecution has failed to exclude the possibility that the accused momentarily fell asleep. The prosecution has also failed to prove any culpability on her part in failing to appreciate she might fall asleep.
The defence case in respect of count 2 is that the prosecution has failed to prove that the accused drove without due care or attention. It has also failed to prove that the accused knew that she had collided with a person. She told police she had hit a post.
The accused’s passenger Mr Repanich
The accused did not give evidence. She exercised her right to remain silent. I draw no inference against her for having exercised her right.
The owner of the Holden, Mr David Repanich, was a passenger in the vehicle being driven by the accused. For reasons that I will explain I found Mr Repanich an unsatisfactory witness whose evidence I do not rely on except where it is consistent with independent evidence. I explain why.
When the accused was stopped by police at 11.30 am on the Southern Expressway both she and her passenger, Mr Repanich, were arrested. Repanich was interviewed by police at the Christies Beach Police Station but released, apparently without charge. I know nothing about what he said to the police beyond what was put to him by Mr Aitken in cross-examination. I will need to refer to aspects of what Repanich said to the police in my discussion of his evidence, even though I conclude, contrary to Mr Aitken’s submission, that what he said to the police probably cannot be used testimonially.
Repanich began his examination-in-chief on 5 April. He said he was 46 and had been friends with the accused for 2 years. By that I took him to mean 2 years before December 2013, but that was not made explicit. Repanich said that the accused appeared unexpectedly at his house in Collinswood during the afternoon of Boxing Day, the day before the collision. He was imprecise about a number of matters, including times. In examination-in-chief he said that she arrived around 6 pm, although it could have been lunchtime.[6] (In cross-examination he said it was between 12 and 2 pm.[7])
[6] T63.
[7] T179.
Other people were at Repanich’s house having drinks to celebrate Christmas. Repanich said that sometime during the evening the accused left the house in the company of a friend called Paul. He thought they went to McDonalds. They were away for a couple of hours. They returned after midnight. In answer to a question by Ms Cairney, for the prosecution, about whether there was any discussion about a proposed trip to Victor Harbor, Repanich gave a long rambling answer in a somewhat disinhibited, agitated manner. His answer was to the effect that his friend Paul had said he was not going to lend his, ie Paul’s, vehicle to the accused.[8] That answer was given just before the lunch break on 5 April. After lunch Ms Cairney told me that she was unable to resume examination-in-chief of Mr Repanich because he was not in a fit state to continue his evidence. No further explanation was given. Another witness was interposed.
[8] T65.
Repanich was recalled just before lunch the following day. He concluded his evidence in the early afternoon. His manner in the witness box on this occasion was not dissimilar to that on the first day. He sometimes appeared disinhibited and agitated.
On resuming, Repanich said that upon his friend Paul refusing to lend his vehicle to the accused, Repanich agreed to accompany her to Victor Harbor in his vehicle. The purpose of going to Victor Harbor was to visit the accused’s father who lived either in Middleton or Victor Harbor. I accept that that was the purpose of the trip. Exhibit P5 is a photograph of a text message from the accused to her father at 11.24 am on 27 December (ie after the collision) saying that she had “car troubles” and was going home instead of visiting him. Repanich said that because he was tired it was decided that the accused should drive. He said they left Collinswood “maybe 10, 11, midnight”.[9] In cross-examination he said between midnight and 2 am.[10] Repanich did not notice the accused sleep at any time she was at his house or on the journey.[11] I will refer shortly to what he said to the police on that topic. He said they stopped at Collinswood to withdraw some money and on South Road, past Reynella, to get petrol. Apart from these stops he slept all the way. The accused appeared “stressed out”.[12]
[9] Examination-in-chief T162.
[10] T176.
[11] T162 and T170.
[12] T163.
Repanich said that at about daylight he woke up to find that they were in Carrikalinga rather than Cape Jervis. They corrected their course and drove on to Cape Jervis where they stayed between 7.30 and 10.30 am while he fished or “squidded”.[13] The accused told police that they went fishing.
[13] T165.
While at Cape Jervis the accused was going to and from a kiosk quite a lot and talking to her mother on the telephone. She appeared “stressed out”. She told Repanich that her mother was “giving her a hard time”.[14] Repanich said that before they left Cape Jervis they had something to eat, “She made some sandwiches or food”.[15]
[14] T164.
[15] T165.
Repanich said that when they set off from Cape Jervis he went to sleep again, reclining the front passenger seat and putting his feet up against the left windscreen. He claims to have been woken up at Yankalilla noticing, three or four times, the accused braking and going around cyclists at a slow speed.[16] He went back to sleep and was woken up by the collision.
[16] T165.
I reproduce his description of the collision highlighting passages upon which I will make comment.
Q. Did you continue driving through Yankalilla. 26
A. Yep. 27
Q. You said earlier that you fell back sleep again. 28
A. Went back to sleep, yep. 29
Q. At that time your legs were positioned up. 30
A. On the windscreen, yep. 31
Q. Did you have shoes on. 32
A. No. 33
Q. Then you said that you felt a bang against your feet. 34
A. Yep, I was fast asleep and Samantha was doing the speed 35
or whatever, 100 km, and I hear a bit of gravel and then 36
'bang' on my feet. I am like 'Fuck, what did you hit? 37
Oh, my feet. Fucking pull over'. She says 'I can't. 38
165
I'm sorry, I'm sorry, I'm sorry, I'll pay for it. I'll 1
pay for it'. I said 'Fuck, pull over'. She said 'I 2
can't, there's a car behind me'. I said 'Fuck, pull 3
over'. Eventually she pulled over. 4
Q. Did you see a car behind you. 5
A. Yeah, the car went around us as she was pulling over. 6
Q. How long did you drive for when you felt that bang 7
against your feet before you stopped. 8
A. I don't know, three or four or five minutes. 9
Q. Could you see the part of the road where you felt that 10
bang from where you stopped. 11
A. Sorry? 12
Q. When you stopped the car were you able to see the area 13
of the road where you had felt that bang on your feet. 14
A. No. 15
Q. When you felt that movement on your feet did you hear 16
anything.17
A. No, just bang on my feet real hard. 18
Q. Did your position change that you described. 19
A. No. 20
Q. You said earlier that Ms Farrer said to you that she hit 21
a sign on a fruit stall. 22
A. Yes. 'I'm sorry, I'm sorry, I'm sorry, I fell asleep. 23
I hit a sign at a fruit stall'. 24
Q. How was she behaving when she said that. 25
A. A bit different. 26
Q. Can you be a bit more descriptive about what you mean by 27
'different'. 28
A. Scared. Scared, frightened. 29
Q. Did you feel the car slow down at any point. 30
A. No. 31
Q. You said earlier you saw some emergency services 32
vehicles, that's my words, you saw some vehicles pass 33
you when you stopped. 34
A. Yeah. 35
Q. At that point was anything said. 36
A. No, nothing was said. She said that she fell asleep and 37
she hit a sign at a fruit stall and I had a look at the 38
166
car and it just looked like tomatoes on the car and I 1
gone like that (INDICATES) with my fingers and it looked 2
like tomatoes. If it looked like blood I would have 3
demanded her to go back. It didn't look like blood. 4
Q. After the movement that you felt against your feet did 5
you notice anything about your car that was different. 6
A. Smashed windscreen. 7
Q. When you stopped and got out to look at your car you 8
describe seeing the tomatoes, did you notice any other 9
damage to your vehicle. 10
A. Not really, no. 11
Q. At this time when you have got out and looked at your 12
vehicle, how was Ms Farrer behaving. 13
A. Like I said, I said 'Let's go back. Hurry, let's go 14
back'. She said 'No, no, no, no. You're all right, I'm 15
all right. I fell asleep and hit a sign at a fruit 16
stall. We will go and see my dad, he only lives five 17
minutes away'. She was acting a little bit different. 18
Q. Did you go and see her dad. 19
A. No. 20
Q. Why was that. 21
A. I jumped back into the car and I said to her 'Go back'. 22
She says 'No, no, no, I'm all right, you're all right. 23
We will go and see my dad'. I said 'Are you sure you 24
want to see your dad with a cracked windscreen'. She 25
got her phone and sent a message to her dad 'I have 26
problems with the car, heading home, see you later'. 27
She went on to Victor Harbor. 28
Q. Between the time that you got out and looked at your 29
vehicle and the time that you described being at Victor 30
Harbor and you said earlier you saw some people around. 31
A. Yeah. 32
Q. What were you doing during that time. 33
A. Back to sleep. 34
Q. Went back to sleep. 35
A. Yeah. 36
Q. After you awoke at Victor Harbor you then fell back to 37
sleep again, is that right. 38
167
A. Yep, yeah. 1
Q. As you said earlier in your evidence, you awoke to see 2
some police cars. 3
A. No, Samantha woke me and said 'There's police behind 4
us'. I looked behind and I seen 10, 15 police cars and 5
then I gone laid back down again. She said 'I think the 6
police are pulling us over'. I said 'Well, pull over', 7
and then all the police cars stayed at the back of my car. 8
168
I find the highlighted passages implausible. I explain why.
·I do not think that Repanich could have heard gravel at the point of collision. There is no evidence to suggest the Holden was in gravel at the time of the collision.
·There is no evidence of there being a vehicle behind the Holden just after the collision.
·There was no fruit stall anywhere near the point of collision.
·The photographs of the vehicle demonstrate that the material on the vehicle looked like blood. It did not look like tomatoes.
·There were not 10 to 15 police cars behind the Holden as it was being pulled over on the Southern Expressway. Constable Knight was on his own.
In combination I find these parts of Repanich’s evidence so implausible that I conclude that he is not a reliable witness. All but the alleged utterance by the accused that she had hit a sign on a fruit stall are contradicted by other reliable evidence. Despite there being no fruit stall anywhere near the collision, I accept it is possible that she made that utterance, but Repanich’s apparent endorsement of the truth of that utterance by saying that the material on the vehicle looked like tomatoes makes me doubt his credit on that topic rather than hers. I am not willing to find that the accused told Repanich that she had hit a sign on a fruit stall.
On the other hand the accused later told the police she had hit a post. I say something now about what I think should have been plain to both Repanich and the accused immediately after the collision.
As I have already said, it is plain that, upon impact, the victim’s body was flung back on to the left side of the bonnet. She hit and shattered the left windscreen. She hit the roof of the vehicle just above the A-pillar with her helmeted head. She was then flung from the vehicle on to the grass verge. The vehicle slowed from 50 to 60 kilometres an hour at the point of collision to 25 to 30 kilometres per hour before driving off.
It must have been perfectly plain to the accused almost immediately after the collision that she had hit a person. She remained in her lane on the road. It would have been perfectly plain that she had not hit a post. Even if Repanich was asleep at the point of impact, it must have quickly become apparent to him as well that the vehicle had collided with a person. If they had stopped the vehicle and looked at the damage they would have seen the blood-like marks. Nevertheless they drove on. Repanich claims to have gone back to sleep. On that topic I think that Constable Knight’s observations of Repanich when he pulled the vehicle over cast some doubt on that. Knight said that he observed Repanich childishly affecting the appearance of waking up.
Repanich says that at no stage did he see the accused take any illicit drugs. He did not see her do that at his house, nor at any time on their journey.
Both the prosecution and the defence place some reliance on Repanich’s evidence. The prosecution seeks some support from Repanich in its contention that there was no opportunity for the accused to ingest methylamphetamine after the accident. She kept driving. Repanich was with her all that time. It also relies on his evidence that he did not observe her get any sleep after arriving at his house in the afternoon of 26 December.
The defence sought, somewhat courageously, to rely on Repanich for the opposite proposition, ie that he had observed her to sleep. That submission is put on the basis that Repanich told the police when interviewed on 27 December that the accused had had some sleep. Passages of his interview were put to him in cross-examination. I reproduce those passages:[17]
[17] T181-2 and T184-5.
QYou were asked some questions about what you and Sam were doing at your house, that is your Collinswood house, prior to departing to go to the squidding expedition. Do you remember that.
ASorry, what we were doing?
QYes. Do you remember being asked some questions by the police about what you were doing at the house.
ANo, not really. She went off with some guy, a mate of mine, that was playing Poker Stars on the computer. He was in a tournament playing Poker Stars and she went to McDonald’s with him.
QCan I just put this to you: you were asked questions about whether there was a sleeping going on or anything at your house, do you remember that.
AYeah, I went to sleep the day before.
QAnd do you remember saying in relation to that ‘No, no, no, no. We – we were sleeping and we were just relaxing and – and, no, we left, we were sleeping and, no, we were just resting at home’. Do you remember saying that.
AYes.
QSo Sam and you were resting at home.
AYeah.
QSleeping.
AWell, yeah.
QAnd do you remember being asked what time you went to bed, that is, the night before, or on probably the 26th.
AYes.
QDo you remember being asked questions about that.
AYep.
QAnd can you remember being asked ‘All right, what time do you think you went to bed the previous night’, that’s the 26th.
AYeah.
QDo you remember giving this answer: ‘The previous night I went to bed, well, average time, night-time’.
AYes.
QWhat time do you usually go to bed.
ANight-time.
QWhat time.
A8 o’clock.
QSo Sam went to sleep too at your house.
AI can’t really remember, you know what I mean. I can’t remember that night when she came.
QAll right, but you did say ‘We were just sleeping, you know, and resting at home’, didn’t you.
AYep, Yep, yes. We was just taking it easy on the couch, watching TV, until she went off with my mate. Them my mate come back with mayonnaise on the side of his face and said ‘I’m not giving her my car’.
QYou have said that.
AOkay.
QI’m not trying to rev you up or anything, I’m just trying to clarify a few matters, so please don’t take it as offensive.
AYeah.
And
QDo you remember the police officers putting to you a suggestion in relation to the question of sleeping prior to going to Cape Jervis.
AYeah.
QDo you remember them putting to you this suggestion: ‘Oh, so you hadn’t really been to bed at all’, and do you remember this response ‘Yeah, we been sleeping, yeah’, and the police officer says ‘Yeah’, and you said in answer ‘Yeah, we been sleeping, yeah’. Do you remember that.
AYeah, I been relaxing.
QWhat I’m saying is, do you remember those questions and the answers you gave to the police.
ANo, not really.
QDo you want me to repeat it.
ANo, not really.
QDo you accept they were the answers you gave.
AWhen was that?
QThe day that you were arrested, namely, the day of the 27th.
AYeah.
QDo you accept they were the answers you gave.
AYep, yep, yep.
QAnd do you remember this: ‘All right, so you’re sort of sleeping on and off the through the day’, answer ‘Yeah, yeah, yeah, just watching TC and stuff, yeah, went to bed, yep. About midnight get up’. Is that right.
AYeah.
QAnd they put some more questions to you. It was in relation to the morning, the morning you went to Cape Jervis.
AYep.
QThis is the police officer ‘All right, but, like, early this morning before you left you remembering on –‘, answer ‘Oh, no, she slept – yeah, yeah, she was sleeping, yeah’, ‘All right, but you both were up at about midnight’, ‘Yeah, yeah’. Is that right.
AYes.
Even though those passages of his Record of Interview seem equivocal or ambiguous what Repanich said to the police would ordinarily only be admissible as previous inconsistent statements. They would not be able to be used testimonially. Mr Aitken sought to overcome this problem by eliciting from Repanich, first, that his memory of events would have been better at the time of the interview than it is now[18] and second, that when being interviewed by the police he had told the truth.[19] I doubt that those answers permit what Repanich told the police to be used testimonially, but even if it can be so used, I do not believe it. I find Repanich to be an unreliable witness. I would only accept his evidence where it is uncontentious or where it is supported by other evidence. He said in court that he had not seen her sleep. To the police he had given ambiguous answers which may indicate she had slept.
[18] T185.
[19] T188.
I indicate which parts of Repanich’s I do accept. I leave aside for present purposes the important questions of whether the accused ingested methylamphetamine before or after the collision, or both, and whether she had any sleep before the collision. Findings on those topics depend on other evidence.
I find that the accused joined Repanich and others at Repanich’s house in Collinswood sometime on 26 December, probably in the afternoon or evening. She may have been absent from the house for a period, perhaps with the friend Paul, and perhaps at McDonalds. In the early hours of the morning the accused drove Repanich’s vehicle to Cape Jervis with the object of visiting her father in or near Victor Harbor in the late morning. They spent time at Cape Jervis. The accused drove the vehicle after Cape Jervis. After the collision the accused decided not to go on and visit her father but to return to Collinswood. She texted her father telling him about her changed plans. She texted him at about 11.24 am, just minutes before being stopped by police.
The accused’s statement to the police
I turn to conversations the accused had with the police. The defence challenges the admissibility of the conversations she had with the police on the afternoon of Friday 27 December 2013. The challenges are the subject of the accused’s Notice filed pursuant to r 49. The first conversation is the one the accused had with Constable Darren Knight, the officer who pulled over the Holden the accused was driving towards Adelaide along the Southern Expressway. Knight stopped the vehicle at about 11.30 am.
The second conversation was the one the accused had with Brevet Sergeant Fred Bakker of the Major Crash Branch at the Christies Beach Police Station at about 2.00 pm.
I will identify the relevant portions of each conversation and the evidentiary use to which the prosecution seeks to put them.
Knight conversations
Knight was stationed on a section of the Southern Expressway which was undergoing widening. The speed limit at that location was 60kph because of the road works. Knight was working alone conducting speed detection duties. The accused was driving along this section of the Expressway at about 11.30 am. There was nothing untoward about her driving. Like the other traffic in that vicinity she was driving at or below 60 kilometres per hour. By that time Knight had heard about the Inman Valley collision on police communications. It appears that the Christies Beach police communications were on the same channel as the Hills/Fleurieu police. Knight heard that a dark-coloured sedan had been involved in the collision and had driven off. He had heard nothing about the make or model or the specific colour of the vehicle.
As the accused approached Knight he noticed the damaged windscreen. Knight was on foot on the eastern side of the Expressway. He decided to stop the vehicle because of the damaged windscreen. He had also noted that the Holden was consistent in size and colour with the limited description of the suspect vehicle. He called on his radio to patrols further along the Expressway to stop the vehicle but he ran to his own vehicle, turned on its lights and sirens and drove after it. He, like the Holden, was driving slowly because of the slow moving traffic.
After driving one and a half to two kilometres Knight was able to stop the Holden. There was no suggestion the Holden was doing anything to evade the police, but because of other traffic Knight could not immediately stop the vehicle.
Knight got out of his vehicle and approached the accused. He asked for her driver’s licence, which she produced. Knight asked her if she was the owner of the vehicle. The accused explained that Repanich owned the vehicle. Knight said Repanich gave a somewhat childish appearance of waking up.
While still holding the accused’s driver’s licence, Knight walked to the front of the vehicle and there noticed the damage to the front left hand side. He also noticed organic matter on part of the damage, by which I took him to mean small portions of flesh or blood. The photographs of the vehicle show what looks like blood.
As he was making the observations of the damage Knight communicated with the Inman Valley police. He told them what he had noticed. He obtained further information from them. Putting together these two pieces of information Knight concluded that it was most likely that the Holden was involved in the crash. He therefore intended to detain the vehicle. Knight was still alone. Having communicated with the Inman Valley police he understood officers from Major Crash were on their way to where he was with the Holden. Knight also called for other local patrols to attend.
After inspecting the front of the vehicle and communicating with the other police, Knight went back to the accused who remained in the driver’s seat. He said in his evidence on the voir dire that while he suspected that the vehicle had been involved in the crash, and he intended to detain it, he did not at that stage have a suspicion about the accused being the driver. She had said that Repanich was the owner of the vehicle. He said he wondered whether the accused might be “covering” for Repanich. Knight said that he felt obliged to explain to the accused that he was going to keep the vehicle there.
I reproduce what is really the first conversation Knight had with the accused when he came back to her from the front of the vehicle.[20]
Q“What was that conversation.
AI’ve said to her ‘Here’s your licence back, thanks for that’. Ms Farrer has replied ‘Is everything okay?’. I said ‘Like I said before, we are looking for a vehicle with recent crash damage and I happen to see your vehicle has a smashed windscreen’. Ms Farrer responded ‘Yeah, I hit a post’. I’ve said back ‘Yeah, okay, I’ve been in the job for many years now and that damage doesn’t look like it was caused by the post’.
[20] T72.
Knight said that, while he intended to detain the vehicle, he had no intention of interviewing the accused.
Having returned the accused’s licence to her he remained at the driver’s door. As other patrols arrived Knight had a second conversation with the accused. I reproduce his evidence in that regard:[21]
QWhat was that conversation?
AMs Farrer asked ‘Why are there so many police here?’ I’ve responded ‘Really we are looking for a car similar to yours with crash damage on it. The car was involved in a crash this morning and it didn’t hit a post.’ Ms Farrer replied ‘What did it hit?’ I’ve replied ‘What do you think it hit? Do you honestly think there would be this much police attention for a car that hit a post? Do you realize the seriousness of the situation now?’ Ms Farrer said ‘Oh, my God, did someone get hit? I didn’t hit anyone, I hit a post’. I said ‘Major Crash will be here shortly and they will let you know what’s going on’.
[21] T73
Knight had no further conversation with the accused. Other police spoke to her.
The prosecution seeks to lead this evidence for these purposes:
1.The accused admitted that she was driving the vehicle at the time of the collision.
2. The accused acknowledged being aware of having had a collision.
3.The accused’s account of the collision to Knight is consistent with her having told Repanich immediately after the collision that she had hit something, but inconsistent with the precise object of the collision, ie. sign on fruit stall/post.
Taken together the evidence is of significance in that it tends to prove the accused was the driver at the time of the collision and was conscious that she had collided with something. That evidence is of probative weight in respect of each of the two charges.
Mr Aitken, for the accused, submits that the evidence should be excluded on a number of bases.
1.Knight had effectively apprehended and detained the accused when he decided to detain the vehicle. He had decided to detain the vehicle before the first of the two conversations. Having detained the accused he failed, pursuant to s 79A(3) of the Summary Offences Act 1953, to advise her of her rights pursuant to s 79A(1).
2.Knight breached the provisions of s 74D of the Summary Offences Act. He did so because, as he first approached the accused, he must have formed a suspicion that she had committed an indictable offence and that he proposed to interview her. In those circumstances he was obliged to record the interview or, if that were not reasonably practicable, make a written record of the interview and read it over to her.[22]
[22] See s 74D(1)(i)-(vi).
Each of those two failures on its own, or in combination, should lead to the exclusion of the conversations on the basis of the fairness and/or the public policy discretions.
In my view the statements made by the accused are admissible and there is no reason to exclude them in the exercise of a judicial discretion. I explain why.
I deal first with the s 79A submission. The section confers rights on people who are apprehended on suspicion of having committed an offence (s 79A(1)). The rights are to be explained to suspects before police question people (sub-s (3)). In this case I find that at the time of the first conversation Knight had not formed a suspicion that the accused had committed an offence. He had stopped the vehicle because of its smashed windscreen and he had inspected the damage at the front left hand side. He had decided to detain the vehicle, but he had not at that stage decided to detain the accused, albeit that detaining the vehicle made it appear that she was being detained too. Knight had not begun questioning the accused. On his saying that police were looking for a vehicle with recent crash damage, the accused volunteered that she had hit a post. Knight’s sceptical response to that assertion does suggest that he did not accept it. While Knight may have thought the accused might be covering for Repanich, her assertion must have drawn some suspicion to her. However, even if by the second conversation, Knight must be taken to have apprehended the accused within the meaning of s 79A(1), he had not begun to question her. In fact it was she who began the second conversation. Again she volunteered that she hit a post. The second conversation adds nothing to the first.
I do not think that Knight breached s 79A(3) of the Summary Offences Act. I do not think he detained the accused. He did not begin questioning her. He decided he had to detain the vehicle, but he was really waiting for Major Crash people to attend to decide what, if anything, should be done about the accused. The accused volunteered the statement that she had hit a post. Knight could have required the accused to state whether she was the driver at the time of the collision but he did not do so.
In R v Lobban[23] the Court of Criminal Appeal identified three discretionary bases for the exclusion of confessional evidence. They are the “overall” discretion where there has been some impropriety on the part of the interrogating police, the public policy discretion (not limited to confessions) where the police have engaged in some unlawful or improper conduct, and the general unfairness discretion where, even in the absence of police impropriety, it is unfair to the accused to admit the evidence.
[23] ( 2000) 77 SASR 24.
In my view there was nothing unlawful or improper about Knight’s actions. He had every reason to detain the vehicle. It is true that his detention of the vehicle would appear to the accused to be a detention of her. I accept that that might appear so to an objective onlooker. However Knight did not begin questioning the accused. Her statements to him were literally volunteered. Even though Knight was entitled to ask the accused whether she was the driver of the car, and plainly would have done so if he intended to question her, he chose not to do so.
Even in the absence of impropriety on Knight’s part, the accused’s utterances could be excluded if it were unfair not to do so. In my view it is not unfair to admit what the accused said to Knight.
In my view there is no public policy reason to exclude what the accused said to Knight. There was no impropriety on his part to enliven that discretion.
I move to the s 74D submissions. Section 74D(1) requires that an officer who suspects, on reasonable grounds, that a person has committed an indictable offence, and who proposes to interview the suspect, must ensure that a video tape is made of the interview if it is reasonably practicable to do so.[24]
[24] See s 74D(1)(a).
When Knight was speaking to the accused it is plain that he did not propose to interview her. Even if he was required to video tape what he said to her, that was not practicable. He did not have any video equipment with him. That is not disputed. Mr Aitken submits that Knight’s failure to comply with s 74D arises out of his not ensuring that what he said to the accused was read over to her when recording equipment was available (sub-s (1)(c)(ii) and (iii)). He noted what she had said but what she said was not read over to her by him or by officers who subsequently interviewed her.
In the circumstances, this is an extremely minor breach of s 74D. After Knight finished speaking to the accused she was taken to the Noarlunga Hospital for a blood test. There she was arrested and given her rights on a number of occasions. Subsequent events really made what she said to Knight almost redundant. Recording equipment was made available. She was given her rights. Still she repeated her assertion that she had hit a post. On the assumption that Knight’s conversation with the accused is, contrary to my view, to be regarded as an interview, its admissibility is governed by s 74E. If, as I find is the case, Knight did not comply with s 74D, in that he failed to ensure that his conversation was read over to her on video, the interview may be admitted if I am satisfied that the interests of justice require its admission (sub-s (1)(b)). In my view the probative weight of the accused’s voluntary utterances is such that the interests of justice require their admission.
Statements to Bakker
Major Crash police officers arrived at the scene where the Holden was stopped. An alco test was administered to the accused. The test was negative. The accused was directed to be taken to the Noarlunga Hospital to undergo a blood test. A video camera recorded the alco test and the direction to have a blood test taken. The accused was placed in the back of a police car. Constable Kathryn Cain accompanied the accused in the police car. She operated the camera. Before the police car left the scene another officer told the accused that no police officer would question her about the crash.[25]
[25] Annexure to statement of Kathryn Cain, Exhibit P8 p 4.
During the journey to the hospital the accused initiated a conversation about the collision. She said, “I stop for animals. I stop for everything. I just ...”. Constable Cain thereupon interrupted the accused and cautioned her.[26]
[26] Annexure to statement of Kathryn Cain, Exhibit P8 p 6.
At the hospital Constable Cain cautioned the accused again.[27]
[27] Annexure to statement of Kathryn Cain, Exhibit P8 p 13.
After a doctor at the hospital took the accused’s blood sample Constable Cain arrested the accused “for the suspicion of leaving the scene of a serious accident”. She gave the accused her s 79A(1) rights.[28]
[28] Annexure to statement of Kathryn Cain, Exhibit P8 p 19.
While the accused did not explicitly say she wanted a lawyer present during any interrogation, she did make enquiries of Constable Cain about getting a lawyer. She continued to discuss getting a lawyer with Constable Cain as she was being taken from the Noarlunga Hospital to the Christies Beach Police Station. Cain kept the video camera engaged the whole time until the accused arrived at the police station.
Brevet Sergeant Fred Bakker began speaking with the accused at the Christies Beach Police Station at about 2 pm.[29] Exhibit P7 is the disk of his conversations with the accused and Exhibit MFI-P7A is a transcript thereof. The transcript includes conversations the accused had with other officers before Bakker speaks.
[29] Exhibit P7 is the disk of his conversations with the accused and MFI-P7A is a transcript thereof.
At page 6 of the transcript Brevet Sergeant Craig Wuttke reminds the accused that she remains on video and he reinforces her right not to say anything. He effectively warns her against saying anything. He said, “Ok, just don’t want you to say something”.
Bakker then begins speaking to the accused. He said the police would be speaking to her in relation to the collision. He said at page 8, “Well we, we need to get ... your version of events of what’s going on as well ...”.
Mr Aitken criticises Bakker for saying those words, but in my view there was nothing wrong about him indicating that he intended interviewing the accused. He was entitled to require the accused to answer questions about who was driving the vehicle. Bakker’s words were immediately followed by further reiteration of the accused’s right to have a solicitor present. There was then discussion with the accused about obtaining a solicitor. That was plainly difficult to organise because it was on 27 December.
Still at page 8 of the transcript, Bakker says that the police were looking at charging the accused with causing death by dangerous driving. I think it is plain that that is the first point at which anyone has explicitly told the accused that someone was killed in the collision. The accused appears quite upset on the video. Bakker said:[30]
Bakker Alright, so you don’t know you’ve hit somebody.
ANo I didn’t know, the guy said, the guy at the, the copper that pulled me over, he said that I did and I was like ‘No I didn’t, I hit a sto..., I hit, I hit the pole like and then I fell asleep.
QOK
AI fell asleep because my friend was asleep and, and I was trying to stay awake, we went fishing.
[30] p 8-9.
The defence seeks the exclusion of those and other utterances made by the accused. The submission is that the accused’s utterances were unguarded and made at a time of high stress. Mr Aitken submits that it is unfair to admit the utterances.
Before dealing with the question of admissibility I turn to those other utterances and recite them. They are as follows:
AOh my God, oh I don’t know what on earth to do (crying) I would have stopped. Oh shit ... [31]
QThat’s OK we’re, we’re, I suppose we, we must apologise, we, we thought you were aware of it.
A(Crying) I mean ... I don’t know, there were so many cyclists around that road.[32]
QI was feeling bad because I thought I had broken his window, well I knew I broke his window because I broke ... Oh my God (crying) I’m so sorry, oh shit, sorry, keep going.[33]
AYeah of course now I’m one of those fucking nasty hit-and-run people but I didn’t mean to.[34]
AOh god oh god, I fell asleep, I was just watching the road and singing, oh my god (crying) my God I didn’t see her, I didn’t see her, I hit, I hit a pole, fuck, I’m sure I’ve said too much already. I know I’m sorry.[35]
[31] p 9 line 16.
[32] p 10 lines 1-4.
[33] p 10 lines 12-14.
[34] p 11 lines 13-14.
[35] p 13 lines 13-15.
At page 27 of the transcript it is clear that the police have managed to contact the solicitor, Ms Carrie Demertzis, and Ms Demertzis has been given the opportunity to speak to the accused on the telephone. Ms Demertzis advised the accused not to answer questions.
On page 28 of the transcript Brevet Sergeant Bakker announces that he is beginning the formal part of the interview and that the time is 2.40 pm. At page 30 Bakker puts the prosecution case and asks the accused whether she was driving. She admits she was. He confirms the arrest on the two charges. He repeats the accused’s rights. He says that he will not ask any further questions. The interview concludes at 2.48 pm.
In my view the utterances made by the accused in the Bakker interview should not be excluded. There is no occasion to exercise the fairness discretion to exclude them. While I accept that the accused was upset at the time, she had many times been told that she did not have to answer questions. Upon her arrest her rights had been fully and adequately explained to her.
Effect of statements to the police
There are really two aspects of what the accused said to the police besides the admission that she was driving. They are, first, that she hit a post and, second, that she fell asleep. I find that the accused lied when she said that she hit a post. When she said that, she knew she had not hit a post but had hit a person. I do not however use that lie as evidence of a consciousness of guilt. If a lie might have been told for reasons other than a consciousness of guilt the lie should not be used for that purpose. Here, the accused might have lied out of panic. In those circumstances the lie cannot be used as consciousness of guilt. It can only affect her credit adversely.
However there is not any real sense in which the evidence can be used to adversely affect her credit. She gave no evidence. There was no exculpatory statement to the police. The only thing she said to the police was that she was asleep. Insofar as her credit is damaged, it is in respect of that assertion. For reasons I have already given I do not think she fell asleep. I do not rely on her lie in coming to that conclusion.
Amphetamine use
A blood sample was taken from the accused at the Noarlunga Hospital at 12.57 pm. The sample showed that there was in her blood 0.43 millilitres of methylamphetamine per litre. There were small quantities of other drugs which are not material in this case. Their presence may be explained by either the ingestion of prescription medications or there may be small quantities of the ingredients of methylamphetamine which have been imperfectly processed in the manufacture of the principal drug. Alcohol was not detected nor were other illicit drugs.[36] (No alcohol or other drugs were detected in the blood sample taken from the deceased at post mortem.[37])
[36] Agreed facts Exhibit P26 [9]-[14].
[37] Agreed facts Exhibit P26 [15]-[18].
Evidence about the effects of methylamphetamine was given by two experts. Professor Jason White gave evidence for the prosecution and Dr Michael Robertson gave evidence for the accused. Before I embark upon a discussion of their evidence, it is necessary to make a finding of fact about when the accused ingested the amphetamine. Plainly the drug would have no bearing on her driving if she ingested it all after the collision. The collision occurred at about 10.40 am. The accused was stopped by police on the Southern Expressway at about 11.30 am.
I am satisfied that the accused did not ingest all of the amphetamine after the collision. I am not able to exclude the possibility that she ingested some of it after the collision.
I accept the evidence of both experts that nothing about the level of the drug in the accused’s blood helps determine the time at which it was ingested. Nor do observations of the accused’s behaviour when stopped by police. That does not mean however that the expert evidence is of no assistance in making the decision about when it was ingested. Both experts said that the effect of the drug is to initially stimulate the user. If the drug is injected or inhaled, the stimulant effect is almost immediate. If the drug is taken orally, the effect is slower to develop. The drug modifies the action of neuroform transmitters in the brain. One effect of the drug is to cause wakefulness. People can stay away for days, particularly if they “top up” with the drug, ie if they take further doses when the effects of earlier doses are thought to be wearing off. When people stop taking the drug they eventually need a great deal of sleep to make up for that which they have lost through taking the drug.
The metabolic effects of the drug are that there is an increased heart rate and blood pressure. The metabolic effects occur even where there is no sign which can be seen by observers. While the drug is not used for therapeutic purposes in Australia, it is used in other parts of the world. It is used, for example, to keep narcoleps awake and to help children with attention deficit hyperactivity disorder to concentrate.
Professor White said that the therapeutic level of methylamphetamine would be of the order of 0.02 to 0.025 millilitres per litre.
The attraction of the drug for illicit users is that the drug can increase energy, self confidence and can cause euphoria. The user is liable to become reckless, impulsive and risk-taking. Thoughts may be racing and become disorganised. Some users are liable to become delusional and psychotic. High doses can be lethal.
If the drug has been ingested or inhaled, and the stimulation experienced almost immediately, the effect of the drug can last for six or seven hours. Even after that time users can have difficulty sleeping.
During what Professor White described as the rebound or withdrawal phase, users become more tired. They may become more depressed or irritable. They may have difficulty concentrating. They may become hungry. The withdrawal phase can last for as long as two days after the last ingestion.
Both experts agree that amphetamine elevates a driver’s risk of crashing.
I do not understand the experts to differ on the matters I have just set out. The experts do differ in a number of respects. I will have to return to those differences shortly. For the present I am drawing on the common features of their evidence to assist in making the finding about whether the accused took all of the amphetamine after the collision. Plainly the experts’ evidence is of no assistance if her ingestion of the drug was only after the collision.
I am satisfied that immediately after the collision the accused was aware that she had collided with someone. Unless she was delusional she cannot have concluded that she hit a post. She did not move out of her lane of traffic either before or immediately after the collision. There was no post she could have hit. That would have been obvious to her. If, once she was well clear of the collision site, she stopped the vehicle to look at the damage, she would have realised she had hit someone. The blood and flesh were still on the vehicle when Constable Knight stopped it. Quite quickly she must have decided to return to Adelaide rather than visit her father in Victor Harbor. She was well on her way back to Adelaide when she texted him to tell him of the change of plans. She texted him at 11.24 am, about 6 minutes before being stopped on the Southern Expressway. Given that the speed limit for at least part of the expressway was 60 kilometres per hour by reason of the road works, I think she must have actually been on the expressway when she texted her father.
It would in my view be extremely unlikely in these circumstances that she would stop the car and take all of the methylamphetamine that caused the quite high reading recorded in the blood taken at 12.57 pm. There were no drugs or drug paraphernalia found in the car when it was searched after she was stopped. That does not of course exclude the possibility of her having ingested the drug and thrown away any evidence of its consumption. Nevertheless, knowing full well that she had collided with someone and having quite quickly decided to return to Adelaide, I think it would be extraordinary for her to have taken all of the methylamphetamine.
While I found that Repanich was an unreliable witness, I think there are several aspects of his evidence that are consistent with other evidence and which ring true. He says he was celebrating Christmas the previous day and night. He says the accused visited him during those celebrations. It is clear that they arranged to go to Victor Harbor and that they would go in his car. While it might have been possible to drive comfortably from his house in Collinswood to Inman Valley Road in daylight, arriving by 10.44 am, I accept Repanich’s evidence that in fact they drove down during the night and that he went fishing at Cape Jervis around sunup. The accused told police they went fishing. In fact I accept Repanich’s evidence that he slept part of the way and woke up to find that the accused had got lost and was at Carrikalinga instead of Cape Jervis. I accept Repanich’s evidence that the accused was driving at all times. I also accept some of Repanich’s evidence about what happened at Cape Jervis. He said that while he was fishing the accused was on her telephone to her mother. She was complaining that her mother was “stressing” her. I accept his evidence that she was walking backwards and forwards to a kiosk.
Repanich’s account is consistent with the accused being under the influence of methylamphetamine at the time. Despite Repanich’s ambiguous and confusing references in his answers to the police that the accused had slept, I think that, having ingested amphetamine, she would have been kept awake. That is how she was able to drive to Cape Jervis overnight, and continue driving up to being stopped by the police at 11.30. As the evidence of the audio visual recordings show, there were no signs of her being tired even at 2 pm. I am satisfied that she consumed almost all of the amphetamine before the collision. I think it most likely that she consumed it all before the collision.
I turn to the evidence of Professor White and Dr Robertson relating to the effects of amphetamine on driving.
I will approach the expert evidence by referring to the relevant parts of Professor White’s evidence, then indicate whether Dr Robertson’s evidence causes me to doubt that of Professor White. I take that approach because the prosecution bears the onus of proving its case. The accused bears no onus. Before undertaking that exercise I make the general observation that it is not always clear whether there is really any difference in the views of the experts on particular points. Professor White’s specific evidence was not always put directly to Dr Robertson. Perhaps the most significant of these particular points was Professor White’s opinion that, in the circumstances as he assumed them to be, he would not expect the accused to have fallen asleep at the time of the collision.
The defence case, at least in part, is that the accused fell asleep. That is what the accused said to Detective Bakker. If she did fall asleep, then the question of her culpability moves back in time to the point before she fell asleep, and what a reasonable person in her position would see as the likelihood of her falling asleep at the wheel. I will return to that topic shortly.
Professor White estimated that if the accused took all the amphetamine before the collision, the level of methylamphetamine in her blood at the time of the collision would have been about 0.53 millilitres per litre. Dr Robertson thought that this back calculation was “not unreasonable”.[38]
[38] T354.
Professor White described 0.43 millilitres per litre as “at the higher end of what’s typically found when blood is analysed in criminal cases”.[39] Professor White said that, although he did not have figures in front of him, that reading would certainly be in the upper 50 per cent, most likely in the upper 30 per cent.
[39] T137. ?????? check
Dr Robertson described 0.43 millilitres per litre as “moderate” for illicit users.[40] He went on to stress the importance of considering the tolerance users can develop to the drug. He described methylamphetamine as “somewhat unique” in that the drug can produce “profound tolerance” in regular users.[41] When he repeated that evidence[42] I asked him whether the drug was unique or not in that respect. He said it was.
[40] T357.
[41] T357.
[42] T375.
I must say that that opinion is at odds with evidence I have heard over many years that users of alcohol and other drugs are liable to develop a tolerance to the drug, such that the effects appear less obvious in seasoned users than they do in first time users. I say the “appearance” of effects because the same large body of evidence with which I am familiar suggests that experienced users still experience metabolic changes and deterioration of function even though those phenomena are somewhat masked by their tolerance. In that respect I prefer the evidence of Professor White who said that “while the user’s tolerance is a relevant consideration, the concentration of the drug in the blood is the most important indicator of the likely effects”.[43]''
[43] T122 and T132-133.
Dr Robertson was asked by Mr Aitken[44] whether he took issue with, or was critical of, Professor White for what was described as Professor White’s “reliance on concentrations of methylamphetamine in an accused’s blood alone ...”. Dr Robertson replied as follows[45]:
I am in so far as the assumption that a certain concentration will lead to certain effects I think is, in the absence of other evidence, I think is speculative. I don’t believe you can draw those inferences. That is predominantly because of the somewhat unique psychology of methylamphetamine and the issues of tolerance and so and so forth.
[44] T366.
[45] T366.
In fact the question misrepresents Professor White’s evidence. Professor White never relied on drug concentration alone. At pages 122 and 123 Professor White listed a number of relevant factors, while maintaining that the effects would depend principally on the concentration of the drug. If by describing as “speculative” Professor White’s evidence about the likely effects of the drug on the accused’s driving at the time of the collision, Dr Robertson meant that Professor White’s evidence is unreliable, I do not accept that opinion. I think that Professor White’s carefully qualified evidence does throw valuable light on the accused’s driving.
There are in my view really only two hypotheses which explain the collision; either the accused had momentarily fallen asleep or, while not asleep, she was distracted from keeping a proper lookout. The cyclist was perfectly visible from a long way off. She was visible to Mr Peters from 300 metres away. It was a perfectly straight stretch of road on a fine day. The cyclist was riding near the left-hand edge of the road. The accused successfully negotiated past Mr Peters riding somewhere between 200 and 300 metres behind her, but only a moment later she hit Ms Heraghty. I will refer to the amphetamine evidence bearing on those two hypotheses but I say at the outset that the accused’s passing Mr Peters makes it less likely that she fell asleep before colliding with Ms Heraghty. I also think that the alertness which the accused exhibited on the police video from about 11.30 am to 2 pm suggests she did not fall asleep earlier.
Professor White was asked specifically whether he would expect someone with the accused’s level of amphetamine to fall asleep. He said he would not.[46] In cross-examination he said he believed he could exclude her falling asleep.[47] That is because, he said, a prominent effect of the drug is to inhibit sleep. Difficulty sleeping occurs even after the six or seven hours during which the drug is having its principal effect.[48]
[46] T128 and T134.
[47] T141.
[48] T117.
Dr Robertson was never asked what he would expect about the accused falling asleep at the time of the collision. He spoke only in generalities.[49] He said drivers may be stimulated or fatigued. He was not asked any questions about the stages or times at which such effects might be experienced. In cross-examination he said that fatigue might occur after the stimulation phase.[50] He was not asked any questions about the temporal aspects of agitation or tiredness. He was never asked in examination-in-chief or cross-examination to comment on Professor White’s opinion that he would not expect the accused to have fallen asleep at the time of the collision. That is of course on the assumption that the drug was taken before the collision.
[49] T361.
[50] T274.
If Dr Robertson disagrees with Professor White’s opinion, he never said so. If he disagrees with Professor White’s evidence that wakefulness persists after the six or seven hour period when the drug is having its principal effects, then he did not say so.
Dr Robertson did say that the absence of braking is consistent with sleep. That is obviously true, but, of course, it is equally consistent with a wakeful failure to keep a look out.
I find it unlikely that the accused fell asleep. I make that finding on a number of grounds.
I find that the accused had driven overnight from Adelaide to Cape Jervis and had remained awake for a period while there. She drove straight to the accident scene. She then drove on to where the police stopped her.
The accused avoided running into Mr Peters 200 to 300 metres before colliding with Ms Heraghty.
The accused was alert while being videoed between 11.30 am and 2 pm.
However, if, contrary to my finding, the accused did fall asleep just before running into Ms Heraghty, then she cannot be said at the point of impact to have been driving at all. The question then becomes whether the accused’s conscious driving before falling asleep was in a manner dangerous to the public. In Hill v Baxter [1958] 1 QB 277 at 282-3 Lord Goddard observed:
That drivers do fall asleep is a not uncommon cause of serious road accidents and it would be impossible as well as disastrous to hold that falling asleep at the wheel was any defence to a charge of dangerous driving. If a driver finds that he is getting sleepy, then he must stop.
In Jiminez v R (1992) 173 CLR 572 at 581, the majority judges of the High Court said that:
It does not necessarily follow that because a driver falls asleep he has had a sufficient warning to enable him to stop.
The prosecution must prove beyond reasonable doubt that the accused was “affected by tiredness to an extent, in the circumstances, his driving was objectively dangerous”.[51]
[51] p 583.
On the assumption that the accused was asleep at the time of the collision then the question is whether the prosecution can prove beyond reasonable doubt that, looked at objectively, the accused drove before that when it was dangerous to do so because she was liable to fall asleep at the wheel. I have found that she was awake all night. She was awake during celebrations at Collinswood before leaving for the south coast in the hours of darkness. She remained awake at Cape Jervis. She drove to Inman Valley Road. If she had ingested no drugs it was objectively dangerous for her to drive. She would have been very aware of gradually become very tired and liable to fall asleep. If she had taken methylamphetamine then initially she would have been stimulated and kept awake by the drug. The experts are unanimous about that. Eventually the drug would wear off and, after the enforced wakefulness, she would need compensating sleep. The experts are unanimous about that too, even if there might be some difference between about when wakefulness gives way to sleep. Objectively looked at, the ingestion of amphetamine is going to cause these reactions. It does not matter whether the accused thought it was safe to drive, either because she had never had the drug before and knew nothing of its effects, or because she well knew of its effects but misjudged their onset. The test of dangerousness is objective not subjective.
I turn to the other possible hypothesis for the accused’s failure to see the cyclist, namely that she was distracted by the effects of the drug. Both Professor White and Dr Robertson say that one effect of methylamphetamine is to render users easily distracted.[52]
[52] Professor White T120-121, Dr Robertson T373 and T378.
However there did appear to be a point of difference between them on a related point. They appear to differ on the question of whether one of the effects of amphetamine is to cause an excessive focus on a particular object to the exclusion of others, that is, a liability to obsessively focus on one thing while ignoring others.
Professor White described that effect in some detail. He said that it was an exaggerated form of the therapeutic effect of the drug. Methylamphetamine is used overseas to help the concentration of people who have trouble concentrating. He said that people who had researched the effect of methylamphetamine had described it as tunnel vision, although Professor White said that that description should be seen only as an analogy. People’s field of vision is not literally narrowed. Rather, their attention is narrowed. He explained that, unaffected by methylamphetamine, our attention is free to move around freely so as to pick up any change in our visual field. Methylamphetamine has the effect of making the user liable to concentrate unduly on a single object with a result that other cues are not picked up.[53] The danger on the road is that the driver’s attention is liable to become focused unduly on non-critical objects and miss critical ones such as the road ahead.
[53] T121.
In cross-examination Ms Cairney asked Dr Robertson if he was aware of this effect of the drug. He said that he was not. He said:
Methylamphetamine whilst stimulated usually creates a level of ease of distraction and poor concentration. I am not familiar with someone becoming super-focussed or hyper-focused. That is something that is typically not documented in the literature.
Insofar as Professor White is saying he is aware of researchers noting the phenomenon and Dr Robertson is saying he is not aware of that literature, I can draw no very helpful conclusions. But I do say that there appeared to me to be a logical connection between the therapeutic low level use of the drug assisting in concentration and the illicit higher level use of the drug causing undue concentration. To that extent I think that Professor White has read some credible literature that Dr Robertson has not.
However I think a more helpful conclusion can be drawn from the observation that both of them made, namely, that one of the effects of methylamphetamine is to cause users to be easily distracted. If a driver is liable to be easily distracted from the demanding job of keeping an adequate lookout, then the drug is creating an objective danger. There may not in fact be any material difference between, on the one hand, a liability to become unduly focused on a non-critical matter, and on the other hand, being easily distracted from the critical matter. The critical matter is keeping a proper look out.
Professor White thought that the accused’s driving was likely to be adversely affected to a significant degree by the amount of methylamphetamine he assumes she had in her blood.[54] While Dr Robertson agreed with Professor White’s count-back, and agreed with Professor White’s account generally of the effects of methylamphetamine, he said on several occasions that Professor White’s descriptions of the likely effects of the drug on the accused were speculative.
[54] T129-30.
I do not think that Professor White’s detailed, qualified descriptions of the likely effects of the drug on the accused were speculative in the sense of being unreliable. He spoke of well known effects of the drug and he did so in careful terms. He acknowledged that he did not have the benefit of facts about the accused’s drug use which would have made his opinion firmer, but he gave reasons why he thought that the concentration of the drug was an important indicator of the effects on the accused.
I think the accused was unlikely to have fallen asleep at the wheel. I think that, by reason of taking methylamphetamine, she was liable to be easily distracted from the task of keeping her eyes on the road ahead.
Findings
I find that the accused drove in a manner which was dangerous to the public. I am satisfied beyond reasonable doubt that her look out was so grossly defective that she failed to see the victim in circumstances where there was no rational hypothesis other than that she was driving dangerously. The victim was clearly visible for at least 300 metres back along Inman Valley Road. The weather was fine and visibility was excellent. It was a straight road. Ms Heraghty was cycling close to the left hand lane.
I make the finding of dangerous driving even in the absence of possible explanations for the grossly defective look out. I reach the same conclusion in the event of each of several possible explanations.
I am satisfied that the accused was awake from the evening of 26 December until after 2 pm on 27 December when the police video was turned off. One possible explanation for her failure to see the cyclist is that she momentarily fell asleep. For reasons I have already given I do not think she did fall asleep. She had passed Mr Peters without incident and was still alert between 11.30 am and 2 pm while on the police video. But if she did fall asleep then I am satisfied beyond reasonable doubt that it was objectively dangerous for her to be driving. If she had had no amphetamine then she must have been extremely tired and increasingly aware of that fatigue. She planned to visit her father and then drive back to Adelaide. She cannot have contemplated that journey if she had not taken amphetamine to keep her awake. However, if she had taken no drug then it was dangerous for her to drive in such a fatigued state.
If she had fallen asleep at the wheel, having taken amphetamine, then it was objectively dangerous for her to drive. If she had not taken the drug before, or had little experience of its effects, then it was objectively dangerous for her to take the drug not realising it might eventually cause her to fall asleep. It was quite a long journey that she proposed. She planned to drive from Collinswood to Cape Jervis, spend some time fishing there, then drive to Victor Harbor to visit her father.
If she was an experienced drug user, then she would have known that one of the effects of amphetamine was to initially cause sleeplessness, then to cause a great need for sleep. Objectively it was dangerous for her to drive knowing of those possible effects.
Having referred to the hypothesis of her falling asleep, I find that the most likely explanation for the accused’s failure to see Ms Heraghty is that she was distracted from her attention to the road ahead by reason of the amphetamine she had taken. I find that one of the effects of methylamphetamine is to make a user susceptible to distraction. I would be inclined to accept Professor White’s description of that phenomenon as hyper-focus on something other than the road ahead, but I think that easy distraction is, in the circumstances of this case, effectively the same thing.
If the accused had taken the drug knowing nothing of its possible effects, then her driving is nevertheless objectively dangerous. It is equally dangerous if she was aware that she would be liable to become easily distracted.
I am satisfied beyond reasonable doubt of the three ingredients which go to make up the basic offence of driving in a manner dangerous to the public. I am satisfied beyond reasonable doubt that the accused drove the car which collided with Ms Heraghty, that in so driving she was driving in a manner dangerous to the public, and that that driving caused the death of Ms Heraghty.
I turn to the aggravating factor. Despite finding that the accused’s driving was dangerous, even if she had not taken amphetamine, I am satisfied that she had ingested the drug before the collision. I exclude as a rational hypothesis that she took all of the drug after the collision
I turn to count 2, the charge of leaving the scene of an accident after causing death. I am satisfied beyond reasonable doubt that the accused caused the death of Ms Heraghty by driving without due care and attention. Driving without due care and attention involves a lesser degree of driver dereliction than what I have found proved.
The accused does not contend that she stopped or rendered assistance or reported to police. Her defence is that she was unaware that the accident had occurred and that her lack of awareness was reasonable in the circumstances. I trace the legislative source of that defence. I am assisted in that exercise by the judgment of Boylan DCJ in R v Horscroft [2009] SADC 125.
Count 2 alleges a breach of s 19AB of the Criminal Law Consolidation Act 1935 which reads as follows:
19AB—Leaving accident scene etc after causing death or harm by careless use of vehicle or vessel
(1) A person who—
(a) drives a vehicle or operates a vessel without due care or attention; and
(b) by that conduct, causes the death of another; and
(c) fails to satisfy the statutory obligations of a driver of a vehicle or an operator of a vessel (as the case may be) in relation to the incident,
is guilty of an offence.
Maximum penalty:
(a) where a motor vehicle or motor vessel was used in the commission of the offence—
(i) for a first offence—imprisonment for 15 years and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 10 years or such longer period as the court orders;
(ii) for a subsequent offence—imprisonment for life and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 10 years or such longer period as the court orders;
(b) where neither a motor vehicle nor motor vessel was used in the commission of the offence—imprisonment for 7 years.
(2) A person who—
(a) drives a vehicle or operates a vessel without due care or attention; and
(b) by that conduct, causes physical harm to another; and
(c)fails to satisfy the statutory obligations of a driver of a vehicle or an operator of a vessel (as the case may be) in relation to the incident, is guilty of an offence.
Maximum penalty:
(a)where a motor vehicle or motor vessel was used in the commission of the offence and the physical harm caused to a person amounts to serious harm—
(i) for a first offence—imprisonment for 15 years and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 10 years or such longer period as the court orders;
(ii) for a subsequent offence—imprisonment for life and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 10 years or such longer period as the court orders;
(b) where a motor vehicle or motor vessel was used in the commission of the offence but the physical harm caused to any person does not amount to serious harm—
(i) for a first offence—imprisonment for 5 years and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 1 year or such longer period as the court orders;
(ii) for a subsequent offence—imprisonment for 7 years and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 3 years or such longer period as the court orders;
(c)where neither a motor vehicle nor motor vessel was used in the commission of the offence—imprisonment for 5 years.
(3) For the purposes of subsection (1) and (2)—
(a)a person fails to satisfy the statutory obligations of a driver of a vehicle in relation to an incident if the person commits an offence against section 43 of the Road Traffic Act 1961 in relation to the incident; and
(b)a person fails to satisfy the statutory obligations of an operator of a vessel in relation to an incident if the person commits an offence against section 75 or 76 of the Harbors and Navigation Act 1993 in relation to the incident.
(4)In determining whether an offence is a first or subsequent offence for the purposes of this section, all previous offences against this section or section 19A that involved the driving of a motor vehicle or operation of a motor vessel must be taken into account except that such an offence will not be taken to be a previous offence for the purposes of subsection (1), or an offence against subsection (2) in which serious harm was caused to a person, unless it resulted in the death of, or grievous bodily or serious harm to, the victim.
(5)Where a convicted person is disqualified from holding or obtaining a driver's licence—
(a)the disqualification operates to cancel any driver's licence held by the convicted person as at the commencement of the period of disqualification; and
(b)the disqualification may not be reduced or mitigated in any way or be substituted by any other penalty or sentence.
(6) A person is liable to be charged with and convicted of an offence against subsection (1) in respect of each person killed, and of an offence against subsection (2) in respect of each person who suffers physical harm, in consequence of the same act or omission (but in determining whether an offence arising out of a particular act or omission is a first or subsequent offence for the purposes of this section, a conviction for an offence arising out of the same act or omission cannot be taken into account).
Section 43 of the Road Traffic Act 1961 reads as follows:
43—Duty to stop, give assistance and present to police where person killed or injured
(1) The driver of a vehicle involved in an accident in which a person is killed or injured must—
(a) immediately after the accident—
(i) stop the vehicle; and
(ii) give all possible assistance; and
(b)not more than 90 minutes after the accident, present himself or herself to a police officer at the scene of the accident or at a police station for the purpose of providing particulars of the accident and submitting to any requirement to undergo a test relating to the presence of alcohol or a drug in his or her blood or oral fluid.
Penalty:
(a) imprisonment for 5 years; and
(b)disqualification from holding or obtaining a driver's licence for such period, being not less than 1 year, as the court thinks fit.
(2) If a court convicts a person of an offence against subsection (1)—
(a)the disqualification prescribed by that subsection cannot be reduced or mitigated in any way unless, in the case of a first offence, the court is satisfied that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month;
(b)if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification.
(3) It is a defence to a charge of an offence against subsection (1) to prove that—
(a)the defendant was unaware that the accident had occurred and that the defendant's lack of awareness was reasonable in the circumstances; or
(b)in relation only to a failure to comply with subsection (1)(a), the defendant—
(i) genuinely believed on reasonable grounds that compliance with subsection (1)(a) would endanger his or her physical safety, or the physical safety of another person; and
(ii) at the earliest opportunity notified police, ambulance or some other authority responsible for providing emergency services of the accident; or
(c)in relation only to a failure to comply with subsection (1)(b), the defendant—
(i) had a reasonable excuse for the failure to comply; and
(ii)presented himself or herself to a police officer as soon as possible after the accident.
“Accident” is defined in s 5 of the Road Traffic Act as follows:
5—Interpretation
(1) In this Act, unless the contrary intention appears—
accident includes—
(a)a collision between 2 or more vehicles; or
(b)any other accident or incident involving a vehicle in which a person is killed or injured, property is damaged, or an animal in someone's charge is killed or injured;
I respectfully agree with, and adopt without repeating, the analysis of s 43 and the definition of “accident” in s 5 by his Honour Judge Boylan. His Honour concluded that s 43 affords a driver a defence to the charge under the section (and consequently s 19AB) if he or she is unaware (relevantly) that someone has been killed or injured, and that the driver’s lack of awareness is reasonable in the circumstances.[55]
[55] See [20]-[26].
Section 43 imposes an obligation of strict liability but for the driver discharging the onus, on balance, that his or her lack of awareness was reasonable. In the circumstances of this case, the accused has not demonstrated a lack of awareness of someone being injured, let alone that that lack of awareness was reasonable. In fact I am satisfied beyond reasonable doubt that the accused was almost immediately aware that she had collided with a person, and that that person would have been injured. I can accept that she is unlikely to have known that anyone had been killed.
With that finding I am satisfied beyond reasonable doubt of all of the ingredients of count 2.
Verdicts
Count 1 – aggravated causing death by dangerous driving Guilty
Count 2 – leaving the scene of an accident after causing death Guilty
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