R v Fricker - [2010] SADC 75

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FRICKER
Criminal Trial by Judge Alone
[2010] SADC 75
Reasons of His Honour Judge Millsteed
26 May 2010
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
Defendant charged with two counts of causing death by dangerous driving - investigation under Part 8A of the Criminal Law Consolidation Act - finding that defendant was mentally unfit to stand trial - finding that the objective elements of the offences of causing death by dangerous driving had been proved - order made that defendant liable to supervision.
Criminal Law Consolidation Act 1935 Part 8A, ss 19A(1), 269H, 269MA(5)(b), 269MB(1), 269MB(2), 269N, 269WA; Road Traffic Act 1961 s45, s46, referred to.
R v Kamleh (1990) 159 LSJS 268; Bromley v R (1986) 161 CLR 315, considered.

R v FRICKER
[2010] SADC 75
INTRODUCTION

On 4 May 2010 I was called upon to investigate, under Part 8A of the Criminal Law Consolidation Act 1935 (“the Act”), whether the defendant, Dwayne Fricker, was mentally fit to stand trial on two counts of causing death by dangerous driving. After the proceedings commenced the prosecution and the defence agreed that the defendant was mentally unfit to stand trial. Pursuant to s 269MA(5)(b) I terminated the investigation and recorded a finding that the defendant was mentally unfit to stand trial.
On 5 May 2010 I proceeded to try, under s 269MB(1), whether the objective elements of the charged offences had been established beyond reasonable doubt. On 7 May 2010 I found, contrary to defence counsel’s submission, that the objective elements had been proved and declared, pursuant to s 269MB(2), the defendant liable to supervision.
I now publish my reasons for both findings.
Although there was no dispute between the prosecution and the defence that the defendant was mentally unfit to stand trial, I decided to explain my findings in respect of that issue for the following reasons. On 5 May 2010 it was reported in the Advertiser that relatives of the deceased considered the finding to be erroneous, unfair and unjust. I was concerned that such views, if accurately reported, may have stemmed from a misunderstanding of the law and the evidence concerning the defendant’s mental condition. For those reasons I announced, in the course of the trial of the objective elements, and in the presence of the deceaseds’ relatives, that I would explain the relevant law and the reasons for my order.
THE ISSUE OF MENTAL FITNESS
The law – an overview
The common law guarantees a person accused of a crime a fair trial according to law. If an accused person cannot receive a fair trial, for any reason, the court has an inherent power to stay the proceedings as an abuse of process.[1] One aspect of the notion of fairness is that a criminal trial cannot proceed unless the accused is physically and mentally fit for trial.[2]
[1] Barton v The Queen (1980) 147 CLR 75.
[2] Eastman v The Queen (2000) 74 ALJR 915 per Gaudron J at 924-925 [64].
In South Australia an accused person’s mental fitness to stand trial on a criminal charge is governed by the provisions in Division 3 of Part 8A of the Act. A person is presumed to be mentally fit to stand trial unless the contrary is established on an investigation under Division 3.[3] The court before which a defendant is to be tried may order such an investigation if there are reasonable grounds to suppose that the defendant is not mentally fit to stand trial.[4] The order may be made on the application of the prosecution, or the defence, or on the judge’s own initiative.[5]
[3]    s 269I.
[4]    s 269J(1).
[5]    s 269J(2).
If the court orders an investigation into a defendant’s mental fitness to stand trial the question of the defendant’s mental fitness to stand trial may be tried before a trial of the objective elements under s 269M or after a trial of the objective elements under s 269N. Broadly speaking the objective elements of the charged offence are those which do not relate to the state of mind that a defendant must possess before he or she can be found guilty in law of that offence.[6]
[6] See definitions of subjective and objective elements (s 269A(1)) and Question of Law Reserved
(No 1 of 1997) (1997) 70 SASR 251.
Regardless of the order in which the issues are tried, a person who is found mentally fit is required to stand trial to determine whether or not he or she is guilty of the charged offence.[7] Conversely, a finding of mental unfitness is a bar to such a trial. However, a person who is found mentally unfit to stand trial is liable to supervision under Part 8A if the objective elements of the charged offence are established beyond reasonable doubt.[8] If the objective elements are not proved beyond reasonable doubt the defendant must be discharged.[9]
[7] s 269MA(3), s 269NB(4).
[8] s 269MB(2), s 269NB(3).
[9] s 269MB(2), s 269NA(2).
The court may, if the prosecution and the defence agree, dispense with or terminate an investigation into a defendant’s fitness to stand trial and record a finding that the defendant is mentally unfit to stand trial.
The test of whether a person is mentally unfit to stand trial is contained in s 269H which states:
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is —
(a)unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b)unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
The history of the present case
On 11 January 2007 a collision occurred between a Ford Futura station wagon driven by the defendant and a Holden Commodore driven by Mr Dwayne Webb at the crossroad intersection of the Balaklava to Snowtown Road and the Lochiel to Blyth Road, Everard. As a result of the collision, Mr Webb and his passenger, Ms Tamara Palmer, suffered fatal injuries.
The defendant suffered severe injuries including brain damage while a passenger in his motor vehicle, Ms Alana Allport, escaped with minor injuries. The defendant was admitted to the Royal Adelaide Hospital on the day of the accident. He remained in hospital until 3 May 2007 when he was admitted to the Hampstead Rehabilitation Centre. He was discharged from that facility on 29 June 2007.
Following a police investigation the defendant was charged with two counts of causing death by dangerous driving contrary to s 19A of the Act and subsequently committed to the District Court for trial.
On 12 May 2008 the defendant appeared before Judge Nicholson for arraignment on the charged offences. The defendant’s solicitor requested that the defendant not be arraigned because she had obtained a report, dated 22 April 2008,[10] from forensic neuropsychologist Mr Mark Reid, which indicated that the defendant was mentally unfit to stand trial. The judge made an order that the defendant not be arraigned and granted an application by the Director of Public Prosecutions for a report to be prepared for the court by another psychologist pursuant to s 269WA regarding the defendant’s mental fitness to stand trial. The proceedings were then adjourned.
[10] The report was filed in the Criminal Court Registry on 13 May 2008.
Before continuing with the history of the proceedings it is appropriate to summarise the key features of Mr Reid’s report.
The report disclosed that Mr Reid had examined the defendant on 21 April 2008. He initially spoke to the defendant in the presence of his mother and then conducted a neuropsychological examination of the defendant in her absence. For the purpose of making an assessment of the defendant’s mental fitness to stand trial, Mr Reid had been supplied with statements of the prosecution witnesses.
Based on the information obtained from the defendant and his mother, Mr Reid considered that the defendant had suffered multiple trauma in the accident including a fractured skull and intracranial haemorrhages. Furthermore, information provided by the defendant’s mother suggested that he had experienced, since the accident, considerable residual cognitive and behavioural changes due to brain damage. However, Mr Reid pointed out that he had not been given the defendant’s medical case notes which may have provided greater insight into the severity and type of head injury that the defendant had suffered.
Mr Reid further reported that his neuropsychological examination indicated that the defendant now suffered from moderate to severe impairment of his “new learning and short term memory skill”. Tests of the defendant’s cognitive skills, in relation to understanding and processing certain information, revealed that the defendant became “confused, produced impulsive and incorrect responses and eventually gave up through frustration”.
In his report Mr Reid concluded:
Based on all the above information and on my examination, I would consider that:
(a)     Mr Fricker is generally able to understand the charge or the allegations on which      the charge is based. He was able to explain to me the charges, which had    previously been explained to himself by his parents. He clearly indicated that he        understood the concepts of being charged with causing death by dangerous driving.
(b)     I believe that Mr Fricker would have extreme difficulty in exercising his procedural rights, including the ability to give rational instructions to do so. This would       normally involve the ability to retain and integrate different pieces of information       and then, based on that information, make rational or reasoned decisions about how to proceed. Based on the neuropsychological examination on this occasion, I do      not believe he could adequately do this.
(c)     Due to his quite severe impairment in new learning and short term memory skill, I     do not believe that Mr Fricker would be able to understand the nature of court       proceedings or to follow the evidence during the course of those proceedings. He     would simply be unable to retain the information given his current deficits.
Overall therefore I do not believe he is currently mentally fit to instruct yourself or to stand trial as defined under S.269H of the CLCA.
With regard to whether or not he is likely to regain fitness to stand trial within the next twelve months, I would consider there is a reasonable probability that this will not be the case. I am aware that this head injury occurred approximately fifteen months ago and it would be considered that the majority of recovery has now taken place, although further recovery could certainly occur over the next six to twelve months. Given the current severity of his memory difficulties, even with further recovery there is a probability that this will not reach the level where he would be able to meet Part (c) of S.269H. I cannot declare this definitively, but I believe this is a likely scenario.
With regard to your question as to his level of intellectual functioning and whether he suffers cognitive difficulties including brain damage/memory deficit, I believe I have generally answered this question in the body of this report. He clearly has suffered a number of cognitive deficits and the most salient feature of this relates to his impairment in new learning and short term memory skill.
As pointed out earlier, I have not seen any specific medical or hospital information and this opinion is provided purely on the basis of the information gleaned from the interview and from the neuropsychological assessment. Further insight into his prognosis could potentially be gained by reviewing the medical/rehabilitation notes, but this would not alter my opinion at the current point in time that he is mentally unfit to stand trial.
On 18 August 2008 psychologist Mr Richard Balfour submitted a written report to the court pursuant to Judge Nicholson’s order. Mr Balfour reported that he had examined the defendant on 30 June 2008 and that for the purposes of his assessment he had accessed the statements of the prosecution witnesses and the defendant’s medical case notes. The Royal Adelaide Hospital case notes confirmed that as a result of the accident the defendant suffered multiple injuries including skull fractures and associated petechial haemorrhages in his brain.
Mr Balfour concluded that the defendant was unfit to stand trial for the following reasons:
Mr Fricker developed a severe retrograde amnesia (loss of long term memories preceding the collision) caused by his traumatic brain injury. He appears to have forgotten the best part of two years of his life leading to the collision. For example, he thought he was still employed at Conroy’s Abbatoir despite having not worked there for two years prior to the collision. He has no memories whatsoever about the collision. He would be unable to provide his defence lawyer with legal instructions based on his recollection of events because he has none. Nevertheless, he has subsequently developed a considerable understanding of what he has been charged with.
Mr Fricker has constructed an understanding of the allegations based on what others have told. I believe he has been able to do this because his conceptual functioning is relatively intact. I would view his situation as being akin to that of a defendant who has suffered post-intoxication amnesia and has no recollection of their behaviour at the time of the alleged offence. I do not believe his retrograde amnesia alone along would make him unfit to stand trial.
I believe that Mr Fricker’s ability to respond to the evidence upon which the allegations are based upon is an important factor in determining his legal fitness. I believe that although he has no veridical memories of the collision he is still able to sufficiently respond to the evidence upon which the allegations are based upon. The basic nature of his offending behaviour is relatively simple to understand. The basic allegation is that he was speeding, failed to heed a give way sign, and was involved in a serious motor vehicle collision. However, I acknowledge there would be a lot of complex technical forensic evidence from the collision scene investigation which would be presented during a trial and be difficult for him to grasp.
I believe Mr Fricker possesses sufficient residual conceptual capacity to be able to reason about the evidence and advise his defence lawyer accordingly because the basic facts are concrete and simple. I believe he would be able to provide his defence lawyer with sufficient legal instructions to allow a fair defence case to be formulated if matter progressed to a trial.
Mr Fricker is a legally naïve defendant. He has had no prior contact with the criminal justice system. His current offences represent the first time he has come into conflict with the law and been required to appear in a court. He is still learning about the criminal justice process as he goes along.
Nevertheless, I believe that Mr Fricker possesses a sufficient rudimentary understanding of the adversarial nature of the criminal justice process. He understands the roles of different court officers. He understands what an oath is. He knows the difference between telling a truth and a lie. He understands what it means to plead guilty or not guilty and the likely legal consequences. His understanding would further improve if he is given an intense orientation to the criminal justice system.
I believe that Mr Fricker would not be able to exercise his procedural rights in the court room (e.g. right to challenge a juror.)
I believe that Mr Fricker could be adequately cross-examined about the offences during a trial if questioned with patience. However, his evidence would be of limited assistance to the trial process because he has no veridical memories of the collision to draw upon to answer questions.
I believe the most problematic legal criteria in assessing Mr Fricker’s legal fitness is his cognitive ability to follow the gist of the legal proceedings, or the course of the evidence, during a trial. I make the assumption that a trial for the current offences would be lengthy, complex, and could easily take one-and-a-half to two weeks.
Mr Fricker has an anterograde amnesia (i.e., impaired short-term memory) and slow speed of information processing. He would find a lengthy trial cognitively taxing and overwhelming. I believe he would be unable to follow the gist of the evidence.
Mr Fricker’s conceptual functioning and ability to reason are largely consistent with his premorbid level of intellectual functioning. Therefore I have considered whether the implementation of special memory aids and concessions would greatly assist him follow the gist of the evidence during a trial (e.g. having information written down for him to review to take the load off his working memory; regular adjournments to allow his defence lawyer to provide him with summary briefs about aspects of the trial he does not understand; having a closed court room to reduce extraneous distractions which may adversely impact on his ability to follow what is happening, etc). However, I do not believe his ability to follow the gist of events would be greatly assisted because his memory functioning is too greatly impaired and his information processing speed is too slow to keep pace with events. He would become cognitively overwhelmed, disorientated and confused about events in the court room.
Overall I believe that on the balance of probabilities Mr Fricker is unfit to stand trial because he would be unable to sufficiently follow the gist of the evidence or the course of the legal proceedings during a trial. He is vulnerable to information overload and would become cognitively overwhelmed.
Mr Fricker’s traumatic brain injury is a permanent medical condition which has produced neurocognitive and neurobehavioural deficits. There is no form of medical treatment which can restore his premorbid cognitive functioning. As a general principle, the maximum amount of cognitive recovery following a traumatic brain injury occurs mainly during the first two years. Any further cognitive improvement is incremental over a long period of time. I believe Mr Fricker is reaching the peak of any cognitive recovery which can be expected. There is no evidence that his retrograde amnesia is shrinking. Therefore I believe he is unlikely to become legally fit to stand trial within the next 12 months.
On 23 September 2008 the court was informed at a directions hearing that the Director of Public Prosecutions was not willing to concede that the defendant was unfit to stand trial. The presiding judge made an order that the defendant’s mental fitness to stand trial be investigated.
On 15 July 2009 the matter came on for a further directions hearing before Judge Nicholson. The judge made an order pursuant to a request by the Director of Public Prosecutions that Mr Reid and Mr Balfour further examine the defendant and provide to the court supplementary reports regarding his mental fitness to stand trial.
Mr Reid subsequently provided a report dated 30 July 2009. Mr Reid stated that he conducted a further interview and neuropsychological examination of the defendant on 29 July 2009. He also accessed the defendant’s medical case notes relating to his admission and treatment at the Royal Adelaide Hospital following the accident.

Mr Reid remained of the view that the defendant was unfit to stand trial for the following reasons:
Based on this recent interview and repeat neuropsychological assessment, there has been no significant change in both the cognitive and behavioural impairments suffered by Mr Fricker, as a result of the very severe brain injury he suffered approximately two and a half years ago. Given this time span since the injury, his neurological and neuropsychological status could now be considered to be permanent and stable, without any likelihood of significant change, either improvement or deterioration, in the foreseeable future.
For the same reasons outlined in my earlier report of April 2008, I continue to maintain the opinion that Mr Fricker is not fit to stand trial under the definitions described in S.269H of the CLCA. I believe it would be beyond his capability to cognitively exercise his procedural rights, to give rational instructions, follow the proceedings in a legal trial and he would be unable to comprehend and integrate comments made in the course of court proceedings.
Given the stability of these cognitive deficits, I do not believe he will regain fitness to stand trial in the future.
Furthermore, I do not believe it is reasonable to consider that adapting court proceedings in some manner, such as reducing the duration of court proceedings to four hours in a morning period, nor the addition of regular breaks, would overcome or compensate for these cognitive deficits. His short term memory is very severe and he cannot retain appropriate amounts of information for more than a few minutes at most. He would certainly not be able to retain relevant information over a thirty minute or one hour period, so regular breaks being provided for further explanation by defence counsel, would simply be ineffective. Even if such breaks were provided at regular intervals and defence counsel did explain proceedings once again to Mr Fricker, these would have to be undertaken in an extremely simplified or simplistic manner and even then, I do not believe he would be able to retain this or integrate this information effectively.
Mr Balfour provided his supplementary report on 5 August 2009. He also remained of the view that the defendant was unfit to stand trial for the following reasons:
In summary, Mr Fricker’s life circumstances have not significantly changed since I last assessed him. He is quite disabled. He has become aggressive to his mother. His father has been forced to stop working so he can assist his wife care for Mr Fricker. His cognitive functioning has most probably slightly deteriorated as evident by his aggressive behaviour.
I continue to believe that on the balance of probabilities Mr Fricker is legally unfit to stand trial.
In my initial assessment I had considered whether providing Mr Fricker with special supports could compensate for his neurocognitive deficits and allow him to follow the gist of the evidence during a trial thereby making him legally fit to stand trial.
I made the assumption that a trial for the current case would be lengthy and complex. For example, lasting seven to ten days in length and involve technical evidence.
I do not believe that reducing the length of the time the court’s (sic) sits each day would greatly assist him to follow the gist of the evidence during a trial. The problem is that if the court sat for half a day (i.e. four hours with a mid adjournment of 30 minutes to allow Defence counsel time to brief him) the trial length would effectively be doubled to 14 to 20 days. He would quickly forget what has happened in preceding days. He would be in a Catch-22 situation. Any incremental short-term memory gains made by having a half day trial would be negated by the doubling of the trial length which would increase his long-term memory forgetting.
I have also considered whether using special memory aides would assist him to follow the gist of the trial. For example, summary notes could be written for him to later review at his leisure to increase his understanding. I believe this approach may have some merit for a very short trial for a very simple matter. I do not believe this approach would assist him with a lengthy and complex trial. He could potentially end up with dozens of A4 sized pages of notes. He lacks the working memory capacity to simultaneously hold several chunks of complex information to allow him to analyse them to increase his comprehension and to enable him to make decisions. He would read the notes and quickly forget what he has read in earlier pages due to the effects of anterograde and retrograde interference on his memory functioning. He lacks the memory capacity to successfully integrate complex written information to make a coherent conceptual gestalt. Furthermore, his slow speed of information processing would impair his ability to keep pace with the court proceedings leading to him suffering information overload and becoming disengaged from the trial process.
When conducting assessments for the courts, I am always acutely aware of the possibility of a defendant exaggerating their presenting cognitive impairment, or blatantly malingering, to avoid serious legal consequences. I frequently encounter defendants who claim to have an impaired short-term memory. I have to make an assessment as to whether the defendant’s memory impairment is organic (due to an underlying disease process) or psychogenic (due to motivational factors) in aetiology.
I have routinely used the Test of Memory Malingering (TOMM) to determine if an individual is motivated to perform on psychological tests of memory functioning to the best of their ability. The TOMM is really a test of motivation more than memory functioning. If a defendant obtains a low score on the TOMM then this suggests they are not motivated to perform to the best of their ability on tests of memory functioning and increases the probability they are malingering. However, to label an individual as a blatant memory malingerer I would have to know their motivations for performing poorly. This is a matter for the court to determine. The most I can say is that a defendant was poorly motivated to perform to the best of their ability on memory testing.
Mr Fricker obtained very low scores on the TOMM consistent with an individual not trying to the best of their ability. However, I placed less reliance on his TOMM results in formulating an opinion because he simply was not following the correct test instructions. He was trying to guess the pattern of A-B answer responses instead of memorizing the images on the test. I believe he has a genuine organic memory disorder despite having obtained a poor TOMM score.
On 4 May 2009 the investigation of the defendant’s mental fitness to stand trial commenced before me. Ms G Davison of counsel appeared for the defendant and the Director of Public Prosecutions was represented by Mr T Preston. I granted Ms Davison’s application that the issues be tried by judge alone pursuant to s 269B and that the question of the defendant’s mental fitness to stand trial be tried before the trial of the objective elements under s 269M.
Upon the commencement of the trial Ms Davison tendered the psychological reports prepared by Mr Reid and Mr Balfour that I have already canvassed. Mr Preston conceded that on the basis of those reports the defendant was mentally unfit to stand trial and agreed with Ms Davison that I should terminate the investigation into the defendant’s mental fitness pursuant to s 269M(5). I terminated the investigation and recorded a finding that the defendant was mentally unfit to stand trial.
It should be observed that I would not have terminated the investigation if I did not consider the prosecution’s concession to be appropriate. The prosecution’s decision to agree the defendant’s mental fitness to stand trial was, on the evidence before me, fair and proper. Mr Reid and Mr Balfour are highly qualified and experienced psychologists. For the reasons expressed in their reports they both concluded that the defendant was, on the balance of probabilities, mentally unfit to stand trial. In particular, by reason of the defendant’s brain damage his mental processes are so disordered or impaired that he would be unable to exercise his procedural rights or follow the evidence and the trial proceedings. Under s 269H such a person is mentally unfit to stand trial. In the absence of any evidence to the contrary, and there was none, an order contrary to the one I made would have been entirely perverse.
THE OBJECTIVE ELEMENTS
The law
The offence of causing death by dangerous driving is a breach of s 19A(1) of the Act. The provision relevantly states:
(1)     A person who –
(a)     drives a vehicle … in a culpably negligent manner, recklessly, or at a speed             or in a manner dangerous to the public; and
(b)     by that culpable negligence, recklessness or other conduct, causes the death            of another,
is guilty of an indictable offence.
The objective elements of the offence of causing death by dangerous driving are:
1.The defendant drove a vehicle
2.The defendant drove in a manner dangerous to the public
3.The defendant’s manner of driving caused the death of another person. In relation to this element it is sufficient if the defendant’s manner of driving was a substantial cause of the other person’s death.[11]
[11] R v Mayne (1975) 11 SASR 583 at 589.
If on the trial of a person charged with causing death by dangerous driving the jury is not satisfied that he is guilty of that offence charged, but is satisfied that he is guilty of a less serious offence of driving in a manner dangerous to the public (contrary to s 46 of the Road Traffic Act), or driving carelessly (contrary to s 45 of the Road Traffic Act), the jury may bring in a verdict that the person is guilty of that less serious offence.[12]
[12] Section 19B(3) Criminal Law Consolidation Act 1935.
In the present case there was no dispute that in relation to each count the prosecution had established beyond reasonable doubt the first and third objective elements of the offence of causing death by dangerous driving. The single contentious issue was whether the prosecution had proved the second element. Ms Davison conceded that the defendant had driven carelessly (without due care or attention) but disputed that his driving amounted to driving in a manner dangerous to the public. She submitted that I should find that the prosecution had succeeded only in proving the objective elements of the less serious offence of driving carelessly.
The distinction between driving in a manner dangerous to the public and driving carelessly was explained by King CJ in R v Kamleh:[13]
The crime is committed by the act of driving in a manner dangerous which any reasonable person in the situation of the driver would recognise as dangerous in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public. Ordinary risks of the road include those arising from the sort of faulty driving and lack of care which must be expected, due to human frailty, from time to time, from the ordinary driver. The sort of driving which constitutes this crime is more serious than that. It is driving which is therefore fit to be regarded as a serious crime. If the driving, although negligent, does not go beyond what might fairly be regarded as an ordinary risk of the road … the driver is guilty of driving without due care and attention contrary to s45 of the Road Traffic Act.
[13] (1990) 159 LSJS 268 at 269.
The trial
On the trial of the objective elements the prosecution called two witnesses to give oral evidence. They were Ms Allport, the passenger in the defendant’s vehicle at the time of the accident, and Senior Constable Simon Cassell, the primary police investigator. The prosecution also tendered a statement of facts agreed between the prosecution and the defence, photographs and plans of the scene of the accident and several statements from prosecution witnesses. The key statements were from Senior Constable Cassell (dated 10 August 2007, 20 November 2008 and 6 May 2010) and Senior Sergeant Graham Sydney John England (two statements dated 20 August 2007).
Not surprisingly the defendant was not called to give evidence. As earlier noted the psychological reports confirmed that he had no memory of the accident due to amnesia resulting from his brain injury. Ms Davison tendered a map but adduced no other evidence.
A view of the scene of the accident was conducted at the request of both counsel on 5 May 2010.
Summary of evidence
The evidence put before me on the trial of the objective elements was not in dispute except for aspects of the evidence given by Ms Allport.
Background
At the time of the fatal collision Dwayne Webb was 20 years of age and Tamara Palmer 17 years of age. They resided at Farrell Flats and Clare, respectively. The defendant was 23 years of age, single and lived in Balaklava. He worked at the Primo Meats abattoir north of Port Wakefield. His parents lived near Port Pirie.
The scene of the accident
As earlier noted the fatal collision occurred at about 11.15 am on 11 January 2007 at the intersection of the Balaklava to Snowtown Road and the Blyth to Lochiel Road, Everard. The road from Balaklava to Snowtown extends in a northerly direction. The road from Blyth to Lochiel extends in a westerly direction. The two roads form a crossroad intersection about 35 kilometres north of Balaklava and meet at right angles. At the time of the accident the weather was hot and the roadways were dry.
The road from Blyth to Lochiel was the main through road at the intersection. The road was constructed of bitumen and was in good repair. The road comprised a single lane for westbound traffic and a single lane for east bound traffic. The lanes were separated by broken white lines which changed to a continuous white line closer to the intersection. The road had a posted speed limit of 100 kph. A crossroad sign, for traffic heading west, was situated on the southern verge of the road about 164 metres east of the intersection. There was a hill in the road about one kilometre west of the intersection but otherwise the road was substantially flat.
A wire fence supported by steel droppers extended along the southern side of the Blyth to Lochiel Road several metres from the roadway. The verge between the fence and the road was largely covered with native grasses and small bushes. However, there was a broken line of small trees and large bushes on the southern side of the road east of the crossroad sign. The line extended for a distance of about 48 metres and finished about 16 metres east of the crossroad sign. At the time of the view, those trees and bushes ranged in height from about 500 millimetres to three metres.
The road from Balaklava to Snowtown was constructed of bitumen within the intersection and for a distance of about 50 metres north and south of the intersection. The road surface then changed to hard packed sand and gravel. The road was divided for north and south bound traffic by an unbroken white line in the middle of the bitumen sections of road north, and south, of the intersection. The road had a posted speed limit of 100 kph.
On the road from Balaklava to Snowtown there was a sweeping right hand bend which finished about 200 metres south of the intersection. The road was straight between the bend and the intersection. On this straight section of road there were three signs on the western verge of the road clearly visible for traffic heading north. Those signs comprised:
·A large ‘crossroad’ sign on a pole about 175 metres south of the intersection. The sign was square shaped and measured 1.64 metres x 1.64 metres. The bottom of the sign was 1.13 metres above the ground. For traffic heading north, the sign was visible from a distance of about 300 metres south of the sign.
·A ‘Give Way’ provisory sign on top of a pole a further 79.6 metres north (i.e. about 95 metres south of the intersection). The sign was square shaped and measured 1.25 metres x 1.25 metres. The bottom of the sign was about 1.43 metres above the ground.
·A ‘Give Way’ sign on a pole a further 87.9 metres north (i.e. 7‑8 metres south of the intersection). Give Way lines were painted on the road surface across the entrance to the intersection.
On each side of the road a fence, constructed of wire strands and steel droppers, was located a few metres from the edge of the road. Native grasses and low lying shrubs were growing between the fences and the road. Open paddocks were situated to the west and east of the fence alignments. The paddocks extended to the fence alignments on the southern side of the Blyth to Lochiel Road.
A driver travelling north along the Balaklava to Snowtown Road was afforded a clear view through the paddocks of traffic travelling east and west along the Blyth to Lochiel Road unless the traffic was in the vicinity of the line of small trees and shrubs situated on the southern side of that road.
Senior Constable Cassell attended the scene of the accident on the day of the view. He testified that on that occasion he was able to see, through gaps in the line of trees and shrubs to which I have just referred, motor vehicles travelling west along the Blyth to Lochiel Road. He said that he made those observations from two positions while standing on the Balaklava to Snowtown Road. The first position was 200 metres south of the crossroad sign (375 metres south of the intersection) and the second, 100 metres south of the crossroad sign.
Ms Davison objected to this evidence on the basis that it constituted inadmissible opinion evidence. I admitted the evidence. It clearly constituted evidence of observations made by the witness and not evidence of opinion.
It is reasonable to assume that at the time of the accident the shrubs and trees were somewhat smaller, and the gaps between them somewhat larger, than they were at the time of the view. I accept the prosecution’s submission that at the time of the accident a driver travelling north along the Balaklava to Snowtown Road should have been able to see a motor vehicle travelling west along the Blyth to Lochiel Road as it went past gaps in the line of small trees and shrubs on the southern side of the road, if the driver was in or near the positions from which Senior Constable Cassell made his observations. But for reasons that I will canvass later, I do not believe that much turns on this aspect of Senior Constable Cassell’s evidence.
The collision
Prior to the collision the defendant was driving his silver Ford Futura station wagon (registered number South Australia VUB-457) north along the Snowtown Road with Ms Alana Allport sitting in the front passenger seat. Mr Dwayne Webb was driving his red Holden Commodore (registered number South Australia XEK-511) west along the Lochiel Road with his passenger Ms Tamara Palmer sitting in the front passenger seat. The vehicles collided after the defendant disobeyed the ‘Give Way’ sign and drove into the intersection.
Senior Constable Cassell and Senior Sergeant England, members of the police Major Crash Investigation Unit, examined the vehicles and the scene of the accident that day. They concluded from damage to the vehicles that the front right of the Ford Futura initially impacted with the front left/passenger side of the Holden Commodore. Gouge marks in the surface of the Blyth to Lochiel Road indicated that the vehicles had collided in the centre of the intersection but within the lane for westbound traffic. There were no tyre marks on the surfaces of the road to suggest that either driver had applied his brakes prior to the collision.
Senior Constable England, an expert in accident reconstruction, calculated the approximate speeds of the vehicles at the moment of collision using established scientific principles. He concluded that at the moment of impact the Ford Futura was travelling at a speed of between 71 and 84 kph and the Holden Commodore between 68 and 81 kph.
Factors which did not contribute to the accident

At the time the weather was hot and the roadways were dry. Neither motor vehicle had any mechanical defects that would have contributed to the collision. Samples of blood were collected from each driver after the collision and were later analysed. Neither driver was affected by alcohol or drugs.
Ms Allport’s evidence
Ms Allport testified that she was 20 years of age at the time of the collision. She had been in a short relationship with the defendant and stayed with him at his home during the week leading up to the accident. During that week she informed the defendant that she did not want to continue the relationship. He did not appear to be upset by her decision and agreed to drive her home on 11 January 2007.
On 10 January the defendant worked a late shift at the abattoirs and returned home at about 2–3 am. On the morning of 11 January the defendant complained to Ms Allport that he was required to work at the abattoirs later that day. He indicated that he was busy and seemed anxious to drive her home.
At about 11 am the defendant and Ms Allport left his home at Balaklava in the Ford Futura station wagon to drive to Port Pirie. They stopped briefly at a delicatessen in Balaklava where Ms Allport purchased a takeaway meal.
The defendant then told Ms Allport that he wanted to take a shortcut and drove north along the Balaklava to Snowtown Road. The alternative route would have involved driving west along a main road to Port Wakefield and then north along Highway One to Port Pirie via Snowtown. Ms Allport said that during the trip the atmosphere in the car was tense. She was reluctant to speak to the defendant because of her decision to terminate their relationship and paid little attention to the road ahead because she was deep in thought.
In examination-in-chief Ms Allport said that a “few moments” before the collision she looked at the speedometer and saw that the defendant was driving between 130–140 kph. She also noticed that he was not wearing his seat belt. She said that a “couple of moments” later she heard the defendant say “Oh shit”. She looked at him and then looked ahead through the front windscreen. Almost immediately the Ford Futura collided with a red car that had travelled from their right.
Ms Davison submitted that I should not accept Ms Allport as a reliable witness. In particular, she was critical of the witness’s assertion that she looked at the speedometer and saw that the defendant was speeding. Ms Davison, in part, relied upon the fact that Ms Allport suffers from depression and an anxiety disorder and did so at the time of the accident. Ms Davison contended that I should give myself a “Bromley direction” by reason of the fact that Ms Allport suffers from those conditions.
I reject that submission. In Bromley v R[14] the High Court rejected an argument that the trial judge erred in failing to direct a jury that it would be dangerous to convict on the uncorroborated evidence of a witness who suffered an attack of schizophrenia on the night of a murder that he purported to witness and agreed that the trial judge’s direction that the jury should scrutinise the evidence of the witness with care was sufficient. I see no need to give myself such a direction. There is no evidence that the conditions from which Ms Allport suffers would intrinsically affect her ability to accurately perceive and recall events.
[14] (1986) 161 CLR 315.
I accept, however, that Ms Allport may have been mistaken in her evidence about two matters.
First, her evidence that the defendant was driving possibly as fast as 140 kph was inconsistent with her statement to police dated 3 August 2007 that the speedometer indicated a speed of between 120–130 kph.
Secondly, I am not satisfied beyond reasonable doubt that the accident occurred only a “couple of moments” after Ms Allport looked at the speedometer. In cross-examination Ms Allport said that after she looked at the speedometer she looked down at her lap and contemplated telling the defendant to slow down. She also looked at the ground through the window on the passenger’s side of the car. Ms Allport’s evidence in cross-examination was quite unclear as to the amount of time that elapsed between her looking at the speedometer and the collision. On her description of what she did after looking at the speedometer, many seconds, indeed possibly minutes, may have elapsed. During that time the defendant may have slowed down considerably. Such a scenario is consistent with the opinion of Senior Sergeant England that the defendant was travelling at a speed of between 71 and 84 kph when he entered the intersection and collided with the Holden Commodore.
The defendant’s familiarity with the intersection
There was no direct evidence that the defendant had driven along the Balaklava to Snowtown Road before the day of the accident. However, it is reasonable to infer that he had travelled the road before and was familiar with the crossroad intersection. The fact of the matter is that he lived in Balaklava. Furthermore his parents resided at Port Pirie and the shortest route to Port Pirie from Balaklava was the one the defendant took on the day of the accident. He was obviously aware of that because he told Ms Allport before they left Balaklava on the day of the accident that he wanted to take a shortcut.
Findings
I find that Ms Allport was an honest witness who gave substantially accurate evidence. I accept that she looked at the speedometer and saw that the defendant was speeding as they travelled along the Balaklava to Snowtown Road. However, bearing in mind Ms Allport’s prior inconsistent statement on this topic I consider that it is reasonably possible that the defendant was not travelling in excess of between 120–130 kph at that point.
Regardless of the speed at which the Ford Futura was travelling at the time Ms Allport looked at the speedometer, I am satisfied that the defendant slowed down before the intersection. I accept the opinion of Senior Sergeant England that the defendant drove into the intersection at a speed of between 71–84 kph. The approximate point of impact between the two vehicles and the speed of the Ford Futura indicates that the defendant was intending to drive through the intersection and continue his journey north along the Balaklava to Snowtown Road.
I am satisfied even if the defendant was not familiar with the Balaklava to Snowtown Road he could not have failed to see the ‘crossroad’ sign, the ‘Give Way’ provisory sign and the ‘Give Way’ sign on his approach to the intersection. Nor could he have failed to see the Blyth to Lochiel Road, or any traffic heading towards the intersection from the western end of the line of trees and shrubs, if he had looked in that direction.
I am satisfied beyond reasonable doubt that the defendant either saw the Holden Commodore travelling west and tried to beat it through the intersection (calling out “Oh shit” when he realised that he had made a gross error of judgment) or failed to see if there was any traffic travelling from that direction until he was about to enter, or had entered, the intersection and it was too late to avoid the collision.
It is not possible to identify the reasons why the defendant may have failed to look to his right until it was too late. He may have been distracted by the thought of having to return in time for work or because his relationship with Ms Allport had terminated, although the latter seems unlikely in the light of Ms Allport’s evidence that he did not appear upset by her decision. In any event, in my view, it does not matter why he may have failed to look right before attempting to drive across a main road. Such a failure would have amounted to gross negligence.
I am satisfied that regardless of whether the defendant saw the Holden Commodore and tried to beat it through the intersection, or made no effort to see if there was any traffic coming from his right until it was too late, his manner of driving involved such a gross departure from the standard of care expected of road users that it can only be characterised as driving in a manner dangerous to the public.
For her part Ms Davison conceded that the defendant must have seen the three signs on the Balaklava to Snowtown Road south of the intersection and invited me to accept the following hypothesis as to the circumstances of the accident. Ms Davison submitted that the defendant may have initially looked to his right (east) to see if there was any traffic heading west along the Blyth to Lochiel Road but failed to see the Holden Commodore because, at that point, it was obscured by the line of trees and shrubs on the southern side of the Blyth to Lochiel Road. Ms Davison further submitted that the defendant may have then looked to his left (west) to see if there were any vehicles heading east and, upon seeing no such vehicles, drove through the intersection without looking right again because he believed that it was safe to do so. Ms Davison submitted that such a manner of driving amounted to driving carelessly (without due care and attention) rather than driving in a manner dangerous to the public.
Before I explain my reasons for rejecting that submission it is necessary to return to my earlier finding that a person driving north along the Balaklava to Snowtown Road would have been able to see traffic heading west through gaps in the line of trees and shrubs on the southern side of the Blyth to Lochiel Road if the driver was in the positions from which Senior Constable Cassell made his observations.
I accept, as Ms Davison submitted, that if the defendant did not look to his right until he was further north of those positions i.e. closer to the intersection then he would not have the same angle of view of the line of trees and shrubs and any gaps in the vegetation. The angle would have become increasingly more acute the closer he got to the intersection. For those reasons, I am prepared to accept Ms Davison’s hypothesis that it is reasonably possible that on the defendant’s approach to the intersection he may have looked to his right at a stage when the Holden Commodore was temporarily obscured by the line of trees. However, I am still of the view that if the accident occurred in those circumstances the defendant’s manner of driving was dangerous.
The fact of the matter is that the western end of the line of trees and shrubs was about 180 metres east of the intersection. If one accepts Ms Davison’s hypothesis, the Holden Commodore, after having emerged from behind the line of trees and shrubs, would have travelled almost 180 metres before the defendant saw it. At the moment of impact the Holden Commodore was travelling at between 68–81 kph. If the Commodore had been travelling at 81 kph it would have taken approximately 8 seconds for it to have covered the distance of 180 metres. If one assumes, favourably from the defendant’s perspective, that the Holden Commodore was travelling faster, say between 90–100 kph, it still would have taken between about 6–7 seconds for the vehicle to have covered that distance. That is a substantial period of time for the defendant to have been looking west and to have assumed that no vehicle would be coming from the opposite direction. Indeed, regardless of the amount of time that may have elapsed, it would have been grossly negligent for the defendant to have attempted to cross the main intersection at a speed of between 71–84 kph without looking to his right to see if there was any oncoming traffic.
Despite Ms Davison’s submissions to the contrary, it cannot be said that the defendant drove merely without due care and attention. As I have said, I am satisfied beyond reasonable doubt that the defendant either saw the Holden Commodore and foolishly assumed that he could beat it across the intersection, or failed to look in that direction in sufficient time to avoid the collision. On either scenario his failure to give way to the Holden Commodore was the result of a manner of driving that was very dangerous.
Conclusion
It was for these reasons that I found the objective elements of each of the charged offences proved and recorded a finding to that effect.