R v FERGUSON - [2016] SADC 129

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FERGUSON
Criminal Trial by Judge Alone
[2016] SADC 129
Reasons for the Verdicts of His Honour Judge Barrett
2 November 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
The defendant is charged with aggravated causing death by dangerous driving and driving whilst his licence was suspended. The accused drove off the road between Whyalla and Cowell causing the death of his passenger. He had methylamphetamine in his blood. His driver's licence had been suspended because he had not paid a traffic fine.
Held: The accused's driving was dangerous because he was affected by methylamphetamine causing him to fall asleep. His liability to fall asleep was objectively dangerous. He knew his licence was suspended.
Count 1 - Guilty
Count 2 - Guilty
Kroon v R (1991) 54 SASR 476; Hill v Baxter [1958] I QB 277; Jiminez v R (1992) 173 CLR 572, considered.

R v FERGUSON
[2016] SADC 129

The accused has pleaded not guilty to charges of aggravated causing death by dangerous driving (count 1) and driving whilst licence suspended (court 2).
The prosecution case in respect of count 1 is that at about 1.35pm on Sunday 11 October 2015 the accused drove off the Lincoln Highway between Whyalla and Port Lincoln causing his vehicle to roll over several times. His front seat passenger, Ms Malinda Francis, died at the scene as a result of her injuries. Weather conditions were fine and dry. The vehicle was roadworthy. Eyewitnesses in a vehicle behind the accused saw nothing that could have caused his vehicle to go off the highway.
The prosecution case is that the rollover was caused solely by the accused’s dangerous driving. He had methylamphetamine in his bloodstream. The effects of the drug explain the driver dereliction.
In respect of count 2, the prosecution case is that the accused had his drivers’ licence suspended because he had failed to pay a fine of $717. A letter dated 18 September 2015 had been sent by the Fines Enforcement and Recovery Unit of the State Government’s Department of Transport. The letter was sent by the authorities to the accused at his address in Port Lincoln. The letter advised the accused that if he failed to pay the fine his licence would be suspended indefinitely from 9 October 2015.
The defence case in respect of count 1 is that the accused was not driving dangerously. Although he had consumed amphetamine in the days leading up to his and Ms Francis’ departure from Port Lincoln in the week before the rollover, and he had consumed methylamphetamine earlier in the day of the accident, he was alert and able to drive competently. The reasons for him driving off the highway were a combination of two factors. The first factor was that a rock placed on the console of the vehicle had slipped and hit the automatic gear lever. As the accused was distracted by the movement of the rock, two kangaroos appeared in front of the vehicle. In those circumstances the accused was unable to avoid going off the road. His driving was not therefore dangerous.
The defence case in respect of count 2 is that the accused was completely unaware that his licence had been suspended. He had never seen the letter sent by the Transport authorities. He was temporarily separated from his partner and away from his home address at about the time the letter might have been delivered to that address. He only visited that the house occasionally to see his son.
Count 1 - Aggravated causing death by dangerous driving
Legal principles
The only contested ingredient of count 1 is whether the prosecution has proved beyond reasonable doubt that the accused drove in a manner which was dangerous to the public. The accused does not dispute that he was driving at the time of the rollover, that the rollover caused the death of Ms Francis and that at the time of the driving methylamphetamine was present in his blood.
The test for dangerous driving is that the driving must be such that a reasonable person in the situation of the driver ought to recognise that the manner of driving creates a real danger to the public beyond the ordinary risks of the road. The test is an objective one, irrespective of whether the accused intended to drive dangerously or even appreciated that he was doing so (Kroon v R).[1] The accused bears no onus of proof.
[1] (1991) 54 SASR 476.
The evidence
The accused was driving south in the direction of Port Lincoln. He ran off the road as he began to enter a right hand bend. His Land Rover ran entirely off the bitumen on the left side of the road. It then swerved sharply to the right, crossing the bitumen and going entirely into the verge on the right hand side of the road. The vehicle then turned sharply to the left and rolled over, ending up on its roof.
There was no suggestion that the driving was dangerous after the vehicle first left the bitumen on the left hand side of the road. Once the vehicle was off the road, it was out of control.
The prosecution case is that the dangerous driving consists of going off the road in the first place, and the reasons why it did so.
Two witnesses saw the accused’s Land Rover go off the road. They watched it until it came to rest. They were a couple driving with their children in a vehicle behind the accused. Both the adults gave evidence for the prosecution. The driver was Mr Peek. His front passenger was his partner, Ms Fauser.
Mr Peek said he first noticed the accused’s Land Rover some five or so kilometres before the rollover. Mr Peek had his cruise control fixed at 110 kilometres an hour. He passed the Land Rover because it was going noticeably slower than he was. Further along the road, Mr Peek slowed down behind a caravan. The Land Rover caught up with him. When it was safe to do so, Mr Peek passed the caravan. The Land Rover then passed both the caravan and his vehicle. Further on Mr Peek noticed that, although he had reengaged the cruise control, he was beginning to catch up with the Land Rover. Mr Peek noted what he regarded as erratic speed changes on the part of the Land Rover. He also noted erratic movement of the Land Rover across the road. Some distance before the right hand bend where the rollover occurred there is a left hand bend. Mr Peek saw the Land Rover go partly across the white centre line as it went round that bend. In the straight stretch of road between the two bends, Mr Peek noticed that the Land Rover moved from side to side within its lane. He decided that because of what he regarded as the erratic driving of the Land Rover he should disengage the cruise control so as to remain a safe distance from the Land Rover.[2] He disconnected the cruise control. Nevertheless he was still in sight of the Land Rover as it entered the right hand bend. He said he had a clear vision of everything in front of him.[3]
[2] T54.
[3] T55.
He said that as the vehicle approached the bend it simply did not turn. It drove straight forward off the road to the left. It did not swerve off the road.
‘It wasn’t steered around the bend. It was going straight…’.[4]
[4] T56.
Mr Peek then described how the Land Rover jerked to the right across the bitumen and rolled over on the right hand side of the road. Mr Peek pulled up his vehicle and rendered assistance. His partner called 000. The accused got out of the Land Rover. Ms Francis was unconscious in the front passenger side of the car.
Later, while still at the scene, the accused told Mr Peek that there were kangaroos. Mr Peek was not asked exactly what the accused said about the kangaroos. Mr Peek said that he saw no kangaroos. He actually said ‘…I didn’t see – there was no kangaroos there that day’.[5] He said in explanation of that observation, ‘… I had a clear vision of what was happening on that day and from the way the car went off the side of the road, it wasn’t a swerving action, it wasn’t anything like that, it was more like the person was falling asleep and missed the corner. There wasn’t any sudden movements’.
[5] T61.
Mr Stratton-Smith for the accused objected to those two answers by Mr Peek. I overruled both objections. I overruled the first objection because, while I accept that Mr Peek could not give evidence about the accused’s state of mind, his answer was no more than a way of describing what he saw.
I do not rely on his observations about the accused being asleep as evidence of that fact. I do however rely on Mr Peeks’ description of the movement of the Land Rover.
I overruled the second objection because I think Mr Peek was entitled to say that there were no kangaroos. I do not take that answer as an opinion. It is in my view, a shorthand way of saying emphatically that he saw no kangaroos.
I will not canvas Ms Fauser’s evidence. Her evidence was in material respects the same as Mr Peek’s, although it was somewhat less succinct.
Blood was taken from the accused at the Cowell Hospital at 3.35 pm. There was present in that blood sample .41 milligrams per litre of methylamphetamine, .05 milligrams per litre of amphetamine and .04 milligrams per litre of diazepam. Methylamphetamine and amphetamine were also found in the blood of Ms Francis.
At 6.37pm the accused was interviewed by Whyalla CIB officers, Detectives Kim Mayger and Jeff Spry in the Whyalla Police Station. The disk of the interview is Exhibit P8 and a transcript of that exhibit is part of Exhibit MFI‑P7A.
The accused appeared sleepy during the interview. His answers were at times rambling and discursive. He told the police about the kangaroos. His answers are not easy to follow but the passages from pages 30 to 35 seem to be to the effect that there were two kangaroos which were off the left of the road as the accused approached the corner. The kangaroos then hopped across his path. They then turned around and hopped back towards the left. At one stage they were on his right hand side. If that is so then they would have been clearly visible to the occupants of the car behind. Towards the end of the interview[6] the interviewing officers returned to the topic of the kangaroos. It was put to the accused that eyewitnesses had said they had not seen any kangaroos. The accused then declined to answer any further questions. At no stage in the interview did the accused mention the rock slipping on to the gear stick. The interview went for just over an hour, from 6.37pm to 7.55pm.
[6] pp 53-55.
The prosecution called Professor Jason White to give evidence about the effects of ingestion of amphetamines on driving. Professor White was asked to assume that a blood sample was taken from the accused about 2 hours after the rollover and that it showed a concentration of .4 milligrams per litre of methylamphetamine. Professor White further assumed that the accused had not taken any amphetamine after the rollover and that he had last taken the drugs more than three hours before the rollover. Professor White said that in those circumstances the level of amphetamine in the accused’s blood would have been decreasing at the time of the accident. A countback calculation put the concentration of methylamphetamine in the accused’s blood at .47 milligrams per litre at the time of the accident.
Professor White said that there are two effects of methylamphetamine that may bear on the accused’s driving. The first is that the drug can cause sleeplessness. Having consumed the drug people can stay awake for long periods. However the deprivation of sleep eventually catches up with them and they become very tired and susceptible to falling asleep.
The second effect is that the drug can cause people to become hyper-focussed. That is, they can become unduly focussed on a particular matter while failing to notice others. This might be expressed as a tendency to become easily distracted. That makes drug affected drivers susceptible to being distracted from the task of paying attention to their driving.
Professor White said that tests had shown that people were liable to make driver errors when they had methylamphetamine levels of .092 milligrams per litre in their blood. The tested people were assumed to be unaccustomed to taking methylamphetamine. Professor White said that even if a person with a concentration of .47 in their blood had developed a tolerance to the drug they would be more affected by the drug than the unaccustomed test subjects with a level of .092 milligrams per litre.
I accept Professor White’s evidence. I also accept as proved the assumptions that he made when arriving at his estimate of the accused’s blood/amphetamine level.
Professor White said that in his opinion driving with a blood amphetamine level of .47 milligrams per litre was inherently unsafe. He said that such a driver would not be able to drive in a safe manner. They might be able to drive relatively safely for a while but there will come a point when they are driving when it is unsafe to do so. Professor White said that most of the cases in which he had been asked to provide reports where methylamphetamine was involved were where the driver drifts off the road. He said that drifting off the road is not unusual in the case of drivers who have taken methylamphetamine.[7]
[7] T97-98.
On the prosecution case this is what happened. Bearing in mind the evidence of the eyewitness Mr Peek and the evidence of Professor White, the prosecution case is that the accused simply failed to turn into the bend. There was no sudden jerking to the left seen by Mr Peek. It was simply driving straight ahead. That is consistent with the effects of methylamphetamine referred to by Professor White.
At times the accused gave his evidence in a rambling, discursive and almost incoherent manner. On critical topics such as when and how he took methylamphetamine leading up to the rollover, how much sleep he had had and how the rock came to fall on to the gear lever, his evidence was simply not credible. On less central topics his evidence was unlikely and difficult to follow. His evidence was at times inconsistent with what he told the police.
I will attempt to summarise his evidence about events leading up to the rollover.
The accused is 31. He has a son aged six. He says he had been separated from his partner and their son for two and a half to three weeks, during which time he had been only occasionally visiting his son at the former matrimonial home. He says he is employed as a prawn fisherman but had not been out fishing since June 2015. In between prawn fishing trips he worked at a tuna factory in Port Lincoln. He had not worked there for one and a half months before the rollover. He was expecting to resume prawn fishing the day after the rollover.
He was living in a shed. He said he had some experience using methylamphetamine. Although he was not questioned closely about his experience, he said that when he was not at sea prawn fishing he would use the drug a couple of times a week.[8] In the week or so before the rollover he was “just hanging with friends”.[9] Among those friends was Ms Loretta Malcolm who gave evidence for the prosecution. She said she, Ms Francis and the accused had been celebrating some birthdays from the previous Wednesday night. The trio were taking amphetamines on and off until the accused and Ms Francis left Port Lincoln on Friday night to drive to Adelaide. She said she did not believe the accused had slept between the Wednesday night and when he left on the Friday.
[8] T144.
[9] T144.
The accused denied aspects of what Malcolm said. He essentially denied the extent of drug taking, at least on his own part, and said that he got some sleep before setting out from Port Lincoln. He admitted smoking methylamphetamine on the Thursday morning[10] and the Friday morning.[11]
[10] T173.
[11] T129.
I can make no very specific findings about the accused’s drug taking and sleep in the days before he left Port Lincoln. I would not necessarily find that Malcolm gave a reliable account, although I think she was generally trying to be truthful. What I do find is that in the days before he left Port Lincoln the accused was socialising with Malcolm and Ms Francis. Together they took some methylamphetamine. The accused’s sleep pattern was affected by the methylamphetamine he took. The accused’s drug taking and sleep in the days before he left Port Lincoln are less important in determining his mental and physical state at the rollover on Sunday afternoon than the events of the weekend.
The accused gave a rambling and, at times, improbable account of the weekend. He said in examination-in-chief that he had met Ms Francis four or five days before the rollover.[12] In cross-examination he said that he had known her for about a fortnight.[13] He told the police that although he had only met her a few days before the accident she was his girlfriend.
[12] T121.
[13] T167.
The accused has fairly consistently said that they left Port Lincoln at around 11pm on the Friday. Their destination and the purpose of the trip are less clear.
The accused said in the days before they set out, Ms Francis had agreed to buy a Suzuki car from him. To pay the deposit she needed to recover some belongings from a family house in Jamestown and sell them. The agreement was that she would pay the balance of the purchase price over time. The accused himself was negotiating with a third party for the purchase of the Land Rover which they travelled in.
The accused said he drove from Port Lincoln to Jamestown arriving at 4am. They drove via Stirling, Wilmington and Clare. I pause to say that if that is literally the route they took, then it was a very roundabout way to get to Jamestown.
The accused said that as they approached Port Augusta he noticed that Ms Francis had needles with her. He said he drove off the main road just outside of Port Augusta and demanded that she dispose of them. He said he believed she did although he did not watch her do so.
He said that Ms Francis directed him to drive to an empty house in Jamestown. There she proffered to him vinyl records and comics for which he paid her a total of $400. He did not, at that stage, take possession of his purchases. While at the house Ms Francis gathered a guitar and an amplifier, apparently for the purpose of selling them in Adelaide so she could pay for the Suzuki. The accused said that he slept in the Land Rover for about 6 hours en route to Adelaide.
In the afternoon of the Saturday, Ms Francis directed the accused to the house of friends of hers in Salisbury. From there they went to Cash Converters where she sold the guitar and amplifier for $300. During the Saturday afternoon and evening the accused socialised for a while with Ms Francis and her friends at Salisbury and on his own with a friend in the city. He and Ms Francis left the metropolitan area ‘a bit after twenty past eleven’.
The accused’s account of the trip from Adelaide is extremely confusing. He said they set off for Jamestown via Clare with the intention of Ms Francis collecting her belongings from the family house in Jamestown.
I digress to say something about a topic which only peripherally bears on the accused’s account of the events leading up to the rollover. The photographs of the Land Rover at the accident site show that the back of it was full of a miscellany of personal belongings. The police photographed some identity cards of a person who appears to have nothing whatever to do with either the accused or Ms Francis. The accused had no explanation for the cards. He denied in cross-examination that he and Ms Francis had committed a break in at Jamestown and stolen the property.

Questions are not evidence and I put aside any suggestion about the ownership of the contents of the Land Rover. On the other hand the accused’s convoluted account of the visits to Jamestown seem improbable and detract from his credit generally.
Having set off from Adelaide for Jamestown via Clare, the accused said he changed course. In a very discursive explanation[14] the accused said that he got into an argument with Ms Francis about her injecting herself with amphetamine in the car. He said that he turned off the road to Jamestown and went to Port Wakefield where he planned to sleep in a motel and then drive back to Port Lincoln on the Sunday. He said he drove to Port Wakefield. However Ms Francis convinced him not to stay there but to revert to the trip to Jamestown. He says he did that. They arrived in Jamestown around 4am. The accused said he slept at the Jamestown house for about three hours from 4.30 to 7.30am.[15] While the accused was sleeping, Ms Francis filled the Land Rover with her belongings. The accused says they left Jamestown around 8am. The rollover was five and a half hours later at 1.35pm. It is not clear how it took five and a half hours to get from Jamestown to the accident scene.
[14] T137-138.
[15] T139.
The accused did not tell the police about the second visit to Jamestown. He did not tell them that he slept while at Jamestown. He told the police he had left Adelaide between 11pm and midnight on the Saturday and they did not stop on the way. The police were obviously curious about how the journey could have taken so long. The accused’s only explanation to the police was ‘because we were messing around … going back and forth on the road’.[16]
[16] Exhibit P8, p 28.
The police were also understandably curious about when the accused had last consumed amphetamine before the accident. They asked him in some detail about that. He said that he had last taken methylamphetamine a couple of days earlier in Port Lincoln.[17]
[17] Exhibit P8, pp 41-48.
Professor White’s evidence establishes that that cannot be true. Professor White said that if the accused had not taken methylamphetamine for forty-eight hours before his blood sample was taken, then, to have recorded a concentration of .4 milligrams per litre, he would have had to have had a peak concentration of about 12 milligrams per litre. That concentration is fatal.[18]
[18] T93.
In court the accused gave a different account about his drug taking. He said that when they left Jamestown on the Sunday morning, Ms Francis rolled him a number of cigarettes. As he was smoking the cigarettes he noticed that they were not ‘tasting at all nice’. At the same time he was drinking an energy drink. Although he was an experienced amphetamine user, he was not sure whether the increased alertness he was feeling was due to the energy drink or amphetamine. He asked Ms Francis whether she had laced his drink or cigarettes with methylamphetamine. She denied doing so. He says he pulled up off the main road to go to toilet and after questioning Ms Francis further, he came to the conclusion that she had put methylamphetamine in the cigarettes she was giving him.[19]
[19] T142-146.
I do not believe this unedifying, improbable and belated account of the accused’s drug taking before the rollover.
The accused bears no onus of proof but I reject his evidence. I do not know how or when he took the drug before the rollover, but I find that at the time when he drove off the road he had in his blood about .47 milligrams per litre of methylamphetamine.
One effect of the ingestion of methylamphetamine is to keep users awake. I am entirely reliant on the accused’s account of how and when he took the drug and whether and when he got any sleep. He claims to have been completely alert on the drive from Jamestown to the crash site. He claims to have had some sleep before he left Jamestown. As I have said he did not mention the visit to Jamestown to the police.
I do not accept the accused’s evidence about the sleep he says he had before he set about driving on the Sunday. I do not accept any of his account of the trip back from Adelaide. I do not know when or whether he slept over the weekend. I do know from the video of the police interview that he appears extremely tired. He did not dispute the police observations to him early in the interview that he had been falling asleep while in their company.
I turn to the accused’s evidence of his being distracted by a large rock in the car slipping on to the automatic gear shift and distracting him. As I have already noted, he did not tell the police about that. He explained that he refrained from telling them because he was ashamed of having been distracted by the rock.
For the purposes of this discussion I will accept that there was a large rock in the car. Photograph 18 of Exhibit P3 shows a large rock on the ground in the vicinity of the front passenger seat of the upturned vehicle. It is just possible that the rock was on the side of the road and got pushed into that position by the overturning vehicle. It is just possible that the accused has opportunistically seized on that photograph to tell in court, for the first time, the story of the rock. However I will accept that it is at the very least possible that the rock was in the car at the time of the crash.
The accused said that Ms Francis had put the rock in the car in Jamestown. She told the accused it contained opal. She said it was going to help her pay for the Suzuki. She put the rock in the foot well in front of the front passenger seat.
The accused said that just before the accident, Ms Francis moved the rock and placed it on the console between the two front seats. It is difficult to follow what he says was happening at each stage in the lead up to the rollover. He appears at one stage[20] to be explaining how, just after he had passed the caravan (and Mr Peek) shortly before the accident, Ms Francis picked up the rock from the foot well and placed it on the console to point out several aspects of it to him. At the same time he was eating chicken nuggets. He appears to be saying that these two distractions may explain why he might have been moving from side to side in his lane as he approached the right hand bend. He appears to be accepting, and explaining the reason for, Mr Peek’s observations of the car’s movements as it approached the bend.
[20] T149.
The accused then reverts to an earlier stage of the trip, some four kilometres before the accident, to explain that he was shocked to see Ms Francis injecting herself.[21] He says he remonstrated with her. She then had some physical reaction to the drug which worried him. She then appeared to lay across the console towards or over him.[22]
[21] T150.
[22] T151-152.
I reproduce how the accused described events immediately before the accident (T152 line 23 to T154 line 17)
QCould you describe for his Honour what happened and what you saw as you approached that bend, describe it to his Honour
AThis the bend of the crash?
QYes.
AYep, we got to - I got up the straight coming to the bend, I seen the two roos crouched down on the side the road. They sort of propped themselves up. They proceeded to come across to the middle of the road and sort of give me the view that they were turning around to go back the other way. As soon as I seen the roos, I flicked Malinda up by her shoulders, sort of quickly 'Get up' and I've - as she went up, the opal rock came down and hit the stick in the middle of my car, the gear stick, it just went hit the stick. I got distracted. I seen her go to reach for it like it was out of gear and I reached forward, I grabbed it and came off the road and froze.
QWhat's the last thing you remember seeing out of the front of the windscreen.
AThe kangaroos looking to going back that
QWhen you saw the kangaroos how far would you estimate they were away from you.
AAbout 20 m, 25, something like that. Not real sure
QWhen you saw them were you on the bend or still on the straight.
AStill on the straight.
QAnd where were they.
AThey were just up in front of me. The fact that I took my eyes off the road to assess the rock that shot down I - yeah - it was the biggest regrettable thing I ever did.
QDid you manage to move the rock.
AI just put my hand and slid it across
QWhich direction
ATowards myself.
QDid you then look up ahead of you.
AYeah, and I froze. I'd already hit the dirt.
In cross-examination the accused said that he saw the kangaroos in front of him but he was immediately distracted by the rock. Although he told the police the kangaroos had hopped over to his right, he now said that the last he saw of the kangaroos was that they were in front of him, but his attention to them was distracted by the rock.
I completely reject the accused’s account of the lead up to the crash. I think he has manufactured a story to accommodate Mr Peek’s observations of the Land Rover veering within its lane leading up to the right hand bend and Mr Peek’s insistence that there were no kangaroos.
Rejecting the accused’s evidence does not however prove the prosecution case. The prosecution must prove beyond reasonable doubt that the accused drove in a manner which was dangerous to the public. The prosecution must exclude any rational hypothesis consistent with his innocence.
I am satisfied that the reason why the accused drove off the road was because he was affected by methylamphetamine. It is possible that he was awake at the time and was unduly distracted by something which took his attention from the road. However I am satisfied of the accuracy of Mr Peek’s evidence that the accused simply failed to steer into the bend. There was no sudden jerking caused by a rock dislodging in the car or by kangaroos outside it. There were no kangaroos.
While distraction may be an explanation for the accused’s driving, I think that the most likely explanation is that he momentarily fell asleep. That is one of the consequences of taking methylamphetamine. After long wakefulness people’s tiredness eventually catches up with them. The smooth driving off the road by reason of sleep is consistent with Mr Peek’s observations, with Professor White’s evidence about the effects of methylamphetamine and with the accused’s obvious tiredness in the presence of the police. It is also consistent with what I find is the accused’s consumption of methylamphetamine over a period of days before the crash with his consequent extended sleeplessness.
If the accused was asleep when he drove off the road, he was not consciously driving at that very moment. The question then becomes whether his last conscious driving before falling asleep was in a manner dangerous to the public.
In Hill v Baxter[23] 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.
[23] [1958] I QB 277 at pp 282-3.
In Jiminez v R[24] the majority judges of the High Court said:
It does not necessarily follow that because a driver falls asleep he has had a sufficient warning to enable him to stop.
[24] (1992) 173 CLR 572 at p 581.
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’.[25] If the accused was asleep at the time, then the question is whether the prosecution can prove beyond reasonable doubt that, looked at objectively, he drove before that when it was dangerous to do so because he was liable to fall asleep at the wheel. It does not matter that the accused thought it was safe to drive. He says he did think it was safe to drive, but he was an experienced user of methylamphetamine. He had just spent several days taking the drug. He must have been perfectly well aware of the extended period of sleeplessness that the drug had caused. It does not matter if he did not realise that. The test of dangerousness is objective not subjective. The objective observer in the position of the accused would have been aware of the danger that driving in that condition posed.
[25] Jiminez ibid p 583.
I find that the accused drove in a manner which was dangerous to the public. I find that the effects of the drugs he took caused him to drive off the road whether by way of distraction or by way of momentarily falling asleep when he ought to have known that he was liable to do so.
Count 2 – Driving whilst licence suspended
It is not disputed that the Fines Enforcement and Recovery Unit, of what I take to be the Department of Transport, issued a notice on 18 September 2015 advising the accused that unless he paid a fine of $717 by 9 October 2015 his licence would immediately be suspended on that day and would remain suspended until he paid the fine. It is not disputed that the notice was issued on 18 September and addressed to the residential address showing on his licence where the accused had lived for 10 or more years. I would accept as a reasonable possibility that the accused had in fact separated from his partner and was living in a shed. It may even be that he is truthful about having moved out two and a half to three weeks before the accident. If in fact he had moved out three weeks before the accident, then he moved out on the very day the notice was issued. It may be that he was not at home when the notice arrived.
However there are two reasons why I find that he did know of the notice. The first is that he conceded that he would from time to time visit his son at the house.[26] I think it extremely likely that he would, on those occasions, pick up any mail that had been sent to him.
[26] T150.
There is a second reason. He gave somewhat confusing answers to the police and in court indicating that he had gone to the local office of the Transport Department. He told police that he went there to get a card of some sort renewed.[27] In court he that said he went to the office to get a replacement licence for the one he had mislaid. In court he said the woman in the transport office told him that she could not print him a replacement ‘because the fines unit had stopped her from proceeding any further until I had contacted them’.[28]
[27] Exhibit MFI-P7A.
[28] T159.
I think that evidence makes it quite plain that the accused was being told his licence was, or would be, disqualified from 19 October unless he paid the fine. I find that when the accused drove from Port Lincoln on Friday 19 October, he knew his licence was disqualified from that day because he had not paid the outstanding fine.
Verdicts
Count 1 – Aggravated causing death by dangerous driving – Guilty
Count 2 – Driving whilst licence suspended - Guilty