R v GILL - [2012] SADC 76

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GILL
Criminal Trial by Judge Alone
[2012] SADC 76
Reasons for the Verdicts of His Honour Judge Barrett
8 June 2012
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
The accused pleaded guilty to two counts of aggravated driving without due care, but not guilty to causing death by dangerous driving. The accused was driving a Landcruiser with four passengers, towing a laden work trailer along the Stuart Highway north of Coober Pedy. He failed to notice how quickly he was gaining on a van because he was operating his iPod - Whether the defective lookout amounted to driving in a manner dangerous to the public.
Held: The lookout was so defective as to amount to cause death by dangerous driving.
Verdicts: Guilty of two counts of cause death by dangerous driving.
R v Coventry [1938] SASR 79; R v Mayne (1975) 11 SASR 583; R v Duncan (1975) 11 SASR 592; R v Kamleh (1990) 51 ACrimR 435; R v Duryea [2008] SASC 363, considered.

R v GILL
[2012] SADC 76
Introduction

The accused is charged with two counts of causing death by dangerous driving. He pleaded guilty to two counts of aggravated driving without due care but the Director of Public Prosecutions does not accept those pleas in satisfaction of the Information. Hence the trial.
Undisputed facts
On 5 May 2010 the accused was driving a 4-wheel-drive Toyota Landcruiser north of Coober Pedy heading for the APY Lands where he and fellow employees of a building company were going to be doing building works. The vehicle he was driving was towing a trailer laden with tools and building materials. Their vehicle was one of a loose convoy of four vehicles. There was a truck, another Landcruiser and a Hilux utility. The other vehicles were travelling somewhat separately, but they met up at the principal fuel stops in Port Augusta and Coober Pedy. The accused and another employee, Wesley Ridgway, were taking it in turns driving. The journey began that day in Port Lincoln where the company was based. They left early in the morning, probably around 5am. They expected to arrive at the APY Lands in the late afternoon. The accused and Mr Ridgway swapped seats in the front of the vehicle as they took it in turns to drive. They only changed drivers once. Mr Ridgway drove from Port Lincoln to Port Augusta. The accused drove after that. There were three passengers in the back of the Landcruiser. It appears that for the whole journey there was one man, Feng Feng Ye, on a bench seat running along the passenger side of the Landcruiser at right angles to the front seats. At times he was sitting up and at times lying down. The other two men, Zach Lienert and Andrew Bastian, were sitting on the bench seat running along the driver’s side of the Landcruiser. The two bench seats faced each other across the vehicle. It is not entirely clear that each of these two men sat in the same position on the bench seat during the journey. They may have swapped positions at times along the way.
At about 3.45pm the accused was driving on the Stuart Highway some 130 kilometres north of Coober Pedy. He was approaching a slower moving Mitsubishi van driven by a French tourist, Mr Caret. It is not disputed that the accused failed to appreciate how quickly he was approaching the van. As he was driving, he was operating his iPod, selecting music. He did not keep an adequate lookout. When he finally noticed the van, he braked and veered to the right to avoid colliding with it. That manoeuvre caused the trailer to jack-knife. The Landcruiser rolled over, eventually becoming detached from the trailer. The Landcruiser rolled several times ending up on its wheels.
Mr Ye, on the back passenger side bench seat, and Mr Ridgway in the front passenger seat were not wearing their seatbelts. They were thrown from the Landcruiser as it rolled over and were killed. The accused and the two passengers behind him were wearing their seatbelts. They got out of the wreckage with minor injuries.
A British couple, Gordon and Teresa Barnard, were in a van travelling south. They saw the Landcruiser veer into the lane they were travelling in, but they were sufficiently far away to be able to stop safely without colliding with the Landcruiser.
Issues in the trial
The critical issue in the trial is the characterisation of the accused’s driver dereliction. There is no dispute that he failed to appreciate how quickly he was approaching the van. He failed to keep a proper lookout. His attention to his driving was distracted by his attention to the iPod. He failed to appreciate the disparity between his own speed and the lesser speed of the van. He may have been driving too fast. It may be that his excessive speed partly explains why he approached the van so quickly. His speed may have exacerbated the effects of his braking and veering to the right. He admits that his driver dereliction amounts to driving without due care but he denies that it amounts to driving in a manner dangerous to the public. Thus it is that the critical issue in the trial is the characterisation of the accused’s driver dereliction. That will necessitate a close analysis of the circumstances of the driving, the circumstances surrounding the driving and the dynamics of the crash.
Factors not contributing to the crash
Several factors commonly found in these sorts of cases are absent here. It is not suggested that driver fatigue contributed to the accident. While the party had been on the road for about 8 hours it appears the accused was reasonably rested before he set out from Port Lincoln. He was a passenger for the 3 or 4 hours it took Mr Ridgway to drive from Port Lincoln to Port Augusta. It is not clear whether they stopped during that stage of the trip. It seems unlikely. They stopped for fuel and a break at Port Augusta. Although estimates of the length of that stay vary, they appear to have been at the service station in Port Augusta for between 10 and 20 minutes. Thereafter the accused took over the driving. It is not clear how many stops they had after Port Augusta. They definitely stopped at Coober Pedy. Again estimates of the length of that stop vary, but I accept that it was again of the order of 10 to 20 minutes. It seems they might have pulled over to the side of the road to urinate somewhere between Port Augusta and Coober Pedy. They had been driving for between an hour and an hour and a half after they left Coober Pedy. There appear to have been no stops after Coober Pedy.
Both surviving passengers Mr Lienert and Mr Bastian gave evidence. Each was critical, to varying degrees, of the accused’s speed, but neither suggests the accused appeared especially fatigued. Mr Lienert did say that he thought the accused looked tired at Coober Pedy but that evidence is not supported by Mr Bastian and is inconsistent with the evidence of the stages of the journey. I find that fatigue played no part in the crash.
There was no suggestion that the accused had consumed alcohol or drugs. He appears to have been occasionally drinking an energy drink during the trip.
There is no suggestion of any defect in the Landcruiser or the trailer.
The focus of the driver dereliction is on the accused’s lookout and speed.
Speed
The speed limit where the crash occurred is 110 kilometres per hour. At the time the weather was fine. The road was a dry sealed road. The road was flat and in open country. It was on a long shallow bend. The question whether the accused’s speed was excessive is not solely determined by reference to the speed limit. The accused was driving a large vehicle with 4 passengers. He was towing a fully laden trailer whose weight was estimated to be 3 tonnes. A speed which is safe for a moderately laden sedan might not be safe for a fully laden 4‑wheel-drive towing a trailer.
There were several witnesses who testified about the speed of the Landcruiser. The accused took part in a lengthy interview with the police. He did not give evidence at the trial but I am entitled to have regard to what he told the police. He said that generally, on that trip, he was travelling at between 100 and 110 kilometres per hour[1]. At the point when the accused was speaking about seeing the van ahead he agreed that he was still travelling at that speed[2].
[1] Page 20.
[2] Page 37.
Mr Caret, who was driving the van, estimated that the accused’s speed was as high as 130 kilometres per hour. The witness was asked whether he had any sense of how fast the 4-wheel-drive was going when it pulled out to pass him. He said:
Much more faster than me, definitely. I estimate it around 130, 130, then I can’t be totally sure, but it was like really, really fast as he passed me, but then during the – he was overtaking me, he was not going that fast again because it seems really long, the time he overtaking me, you know, so – I mean about 110, maybe more, yeah.
Mr Caret had a quite limited opportunity to observe the accused’s speed. He thinks he, himself, was travelling at between 80 and 90 kilometres per hour. In his rear vision mirror he noticed the 4-wheel-drive approaching from behind. He says he saw the vehicle’s right indicator go on as it pulled out to pass him. He described the 4-wheel-drive’s passing manoeuvre as “quite smooth at first”[3]. He said the accused’s vehicle was coming faster than other cars that passed him[4].
[3] T239.
[4] T238.
The accused’s two passengers estimated the speed of the Landcruiser. They were both sitting on the bench seat behind the driver. As I have said that bench seat ran down the driver’s side of the vehicle.
The first witness was Mr Lienert. He is 21. He says that he was sitting closer to the driver than his companion Mr Bastian. He says that Mr Ridgway was driving at between 110 to 115 kilometres per hour when he drove between Port Lincoln and Port Augusta. He said when the accused took over driving, he was going between 120 and 130 kilometres per hour. He said he noticed the trailer was swaying from side to side between Port Lincoln and Port Augusta but it was doing so to a greater extent at the greater speed after Port Augusta.
At Coober Pedy they met up with the other Landcruiser at the service station. Mr Lienert said that there were two routes from the service station back to the highway. The accused took the shorter route. The other Landcruiser, which was not towing a trailer, took the longer route. The witness said that the accused said that he was going to race the other Landcruiser back to the highway. In the event, the other Landcruiser got back on to the highway before they did and moved well ahead of them as they set off along the highway from Coober Pedy. The witness said that about 20 minutes out of Coober Pedy the accused said to him and Mr Bastian, “Look at the speedo”. Mr Lienert said that he did so and saw that they were travelling at 130 kilometres per hour. Mr Lienert said that he was conscious of the van in front of them when it was just 30 metres from them. At that time he looked at the speedo and saw that they were travelling at 120 kilometres per hour. He said that after the accident the accused said, while they were still at the scene: “We rolled at 120”[5].
[5] T148.
Mr Bastian also spoke about the vehicle’s speed. He said that Mr Ridgway was driving between 90 and 105 kilometres per hour between Port Lincoln and Port Augusta. When the accused took over driving he was driving at between 115 and 130 kilometres per hour. He said that they pulled over for a toilet break somewhere out of Pimba. Between that toilet stop and Coober Pedy the trailer was swaying a fair bit. He said he noticed that the accused would often have to correct the steering as he went around a corner. He said that as the accused drove the Landcruiser along the track from the service station at Coober Pedy back to the highway he was going a bit quicker than he should have to get on to the highway ahead of the other Landcruiser. The other Landcruiser got to the highway before they did by a different route. They had to give way to it as it went past them, presumably at a junction between the track and the highway. He said that after Coober Pedy the accused was driving at between 115 and 130 kilometres per hour. He said that he noticed at that stage the trailer was swaying fairly badly because the road was bad. He said he thought the vehicle was going faster after Coober Pedy than it had before.
Mr Bastian agreed that he had told the police in May 2010 that the accused was driving at 110 kilometres per hour. He told the police that he doubted that it was any faster than that. He said, if anything, it was probably slower than that. He had told the police that he could see the trailer swaying slightly to the left and right for most of the journey. He agreed that he told the police he doubted the accused would have been exceeding the speed limit because it was way too dangerous.
In his evidence the said that he had told the police that because he was trying to protect the accused. He was trying to protect a friend.
In cross-examination he agreed that he thought that the Landcruiser had a V8 motor. He said that he told the police that he knew a Landcruiser with a V8 motor could get to 130 to 140 kilometres per hour even towing a trailer. He agreed that his estimation of the accused’s speed might have been affected by his belief that the Landcruiser had a V8 motor. In fact the Landcruiser had a 6 cylinder motor.
Sergeant David Kuchenmeister of the Major Crash section of the police department gave evidence about his estimate of the speed of the Landcruiser at the start of skid marks on the road attributed to the Landcruiser as it braked before the crash. He said that the range of speed at that point is between 111.2 and 123.23 kilometres per hour. He said that range was at the lower end of ranges when taking into account the variables upon which he based his calculations. I will not canvas the mathematical processes Sergeant Kuchenmeister applied to various observations that he and others made of the crash scene. I will not do so because his methodology has not been criticised or challenged by the defence. I say only that I was impressed by the thoroughness and professionalism of Sergeant Kuchenmeister in his account of how he arrived at the estimates of speed. The conclusion I draw from Sergeant Kuchenmeister’s evidence is that the Landcruiser would not have been travelling at less than 111 kilometres per hour as the skidding began and was probably travelling at a higher speed. I should add that the range of speed I have just referred to is not to be understood to be the lowest and highest speed for the Landcruiser. It is the lowest of several ranges of speed. In other words, the speed may have been higher than 123 kilometres per hour.
One of the reasons why I think that the speed is likely to be higher than 111 kilometres per hour is that the range beginning at that speed is calculated at the point when the skid marks begin. Sergeant Kuchenmeister explained that almost inevitably there would have been some loss of speed before the skid mark began. There is a short, probably extremely short, time before the skid mark appears, during which the driver has taken his foot off the accelerator and applied the brakes. The brakes cause the wheels to lock, which in turn causes the road surface to melt, thus beginning the skid marks. In other words, there is a short period of time before the skid marks during which the vehicle is losing speed. For that reason I conclude that, before he applied his brakes, the accused was travelling at a speed greater than 111 kilometres per hour.
Discussion regarding speed and lookout
I think that Sergeant Kuchenmeister’s evidence is generally a more reliable indication of the speed of the Landcruiser at the point of the accident than is the evidence of the other witnesses. I appreciate that Sergeant Kuchenmeister’s evidence provides only a range of speed. It does not enable a precise speed to be determined. However, I do not think that the witnesses’ accounts identify a precise speed either.
I find that insofar as the accused’s answers to the police suggested that he was travelling at no more than 110 kilometres per hour, he is wrong. That speed is contradicted by Sergeant Kuchenmeister’s evidence which I prefer. I also reject the submission made by Mr Jolly that the accused must have been travelling at less than 110 kilometres per hour because of what appears in a statement from the driver of the other Landcruiser which was driving well in front of the accused’s vehicle. In that statement the driver says that he was driving at 110 kilometres per hour. He was not called as a witness, so what he said in his statement has not been tested. It does appear that he was out of sight of the accused’s vehicle at the time of the accident, but even if that other Landcruiser was travelling at 110 kilometres per hour, it was on the highway leaving Coober Pedy before the accused. It may have got sufficiently far ahead of the accused’s vehicle that he was not able to catch up with it.
I find that Mr Caret’s evidence of the speed is based upon too limited an opportunity to observe the Landcruiser to be relied upon. The accused’s vehicle was coming from behind the van. In any event, Mr Caret’s evidence about speed itself is not very clear. I have already recited his answer.
Mr Bastian does not purport to know what was the speed just before the accident. He says that after Coober Pedy the Landcruiser was travelling at between 115 and 130 kilometres per hour. However he conceded that his estimate was influenced by his belief, wrong as it turns out, that the Landcruiser was an 8 cylinder vehicle, not a 6.
I have reservations about accepting some parts of Mr Lienert’s evidence. I find it surprising, and a little unlikely, that the accused would say to his passengers as he was driving along “Look at the speedo”. I feel likewise about Mr Lienert’s evidence that, after the accident, the accused said “We rolled at 120 kilometres per hour”. I will not canvas the cross-examination of Mr Lienert directed at challenging his assertion that he was both able to see, and did see, the speedo from where he was sitting on the bench seat behind the driver. I am left with a doubt about whether he did actually see the speedo shortly before the accident.
That said, I do not reject the evidence of both Mr Lienert and Mr Bastian insofar as they both say that, at times during the journey, the accused was travelling at 120 kilometres per hour. That speed is within the lowest range of speeds suggested by Sergeant Kuchenmeister as the speed of the Landcruiser when the skid marks began.
I find that it is possible that the accused was travelling at about 120 kilometres per hour when he began to brake before the accident.
On the basis of Sergeant Kuchenmeister’s evidence I am satisfied beyond reasonable doubt that the accused was travelling faster than 111 kilometres per hour.
I turn to a consideration of the speed differential between the accused’s vehicle and the van.
Apart from speed, I think that the accused’s own account of the accident is an accurate one. I think he truthfully described what happened. I think his account explains how the accident occurred. I think it also explains his driver dereliction. That dereliction remains to be characterised legally, but his description points to the inferences of fact which make out his dereliction of driving.
I am satisfied from Mr Caret’s evidence that he was generally driving between 80 and 90 kilometres per hour. He explained that the van he was driving was old, and not very powerful. There were five occupants of the van and they each had luggage. In addition, Mr Caret said they were trying to minimise their fuel consumption by keeping their speed down. The difference in speeds between the van and the Landcruiser is likely, I find, to have been between 20 kilometres per hour (van 90 kilometres per hour/Landcruiser 110 kilometres per hour) and 40 kilometres per hour (van 80 kilometres per hour/Landcruiser 120 kilometres per hour). The difference in speeds of the two vehicles made the accused’s inadequate lookout very dangerous, particularly bearing in mind that he was towing a trailer. I turn to the accused’s description to the police of how the accident occurred.

He said that when they left Coober Pedy everyone was asleep. He had gone to change the song on the iPod. He had had the experience of passing slower vehicles on that trip. He said that he estimated that when he first saw the van it was roughly half a kilometre in front, although he said he was not good at distances[6]. He said this about the approach to the van[7]:
… looked down at the iPod because everyone was asleep, went to change song, looked back up, by the time I looked back up I was right on him, tried to go over, as I went over, got around him sort of thing, real quick, seen traffic oncoming, so I braked real hard to go back behind the van. Didn’t work because we were going quicker, way quicker than what the van was and … we just, the force of the trailer has pushed the troupie around and then it would not go around any more and it just …
[6] Page 30 of the record of interview.
[7] Page 38 of the record of interview.
He agreed that the van might have been about 400 metres away when he first saw it[8]. He said that he came up on the van faster than he had come up on other vehicles that he passed.
I just come up real quick on him.[9]
[8] Page 38 of the record of interview.
[9] Page 39 of the record of interview.
The second time he looked up the van was about 200 metres away. He agreed that he had looked up twice[10]. He said that he was changing down the songs and flicking through the songs[11]. He was looking for something more like his style because everyone was asleep[12]. He said that when he finally looked up the van was two car lengths in front. He realised the danger and started braking[13]. He agreed they were really close. He said[14]:
I’ve tried applying the brakes and we come right up on it real close and then I swung it.
[10] Page 40 of the record of interview.
[11] Page 41 of the record of interview.
[12] Page 42 of the record of interview.
[13] Page 44 of the record of interview.
[14] Page 45 of the record of interview.
He said that as he went round he took his foot off the brake. He said he did not accelerate. He said that when he saw the traffic ahead he instantly jerked on the brakes a bit harder [15]. He said he would have been at the driver’s door of the van when he was trying to get back[16].
[15] Page 46 of the record of interview.
[16] Page 47 of the record of interview.
That description corresponds with Sergeant Kuchenmeister’s reconstruction of the accident. I will not recount his reconstruction in detail but I will summarise it.
Sergeant Kuchenmeister said that immediately prior to the skid marks the accused had both braked and steered to the right. The skid marks begin while the Landcruiser is still in its own lane. The accused was not executing a smooth passing motion as Mr Caret suggested. As the accused himself acknowledged to the police, “I was right on him”. As the Landcruiser went into the right lane, the accused became aware of the oncoming vehicle. Calculations made by Sergeant Kuchenmeister suggest that it is possible, even likely, that the accused would not have been able to safely pass the van. He may have run into the oncoming vehicle. Those calculations make assumptions about what each of the three vehicles would have done once the danger was evident. Those assumptions may not be correct. I do not conclude that it would have been impossible, theoretically, for the accused to have passed the van without colliding with the oncoming vehicle. However, by braking and steering to the right, the forces operating on the Landcruiser were probably already irreversible. The trailer had moved to the left as the Landcruiser steered to the right. The trailer then moved so far to the right that it went off the bitumen. That movement by the trailer caused it to pull the rear of the Landcruiser to the right. The Landcruiser became perpendicular to the road. Thereafter the Landcruiser and the trailer began to roll-over. The trailer’s movement to the right was exacerbated by a slight release of braking by the accused and a slight steering to the left. That is consistent with the accused seeing the oncoming vehicle and trying to steer back to the left. It is not suggested that this manoeuvre to the left was reprehensible. The accused certainly had reason to think he might not be able to pass safely. Whether or not he could have safely negotiated the passing of the van is really academic. The initial braking and veering to the right had made the rollover inevitable. After the Landcruiser and the trailer began rolling, the two became decoupled. It is not clear how many times the Landcruiser rolled but, in the process, the two passengers not wearing seatbelts were thrown out of the vehicle and killed.
I say something further about speed. Even if the accused was travelling at, or over 120 kilometres per hour, it is not his speed per se which caused the rollover. It is really the speed differential between the two vehicles that is critical. More particularly, it is the accused’s failure to appreciate that differential that was so important. The accused entirely failed to notice how much faster he was going than the van. That said, it is possibly true that the dynamics of the accident might have been less severe at a lower speed. I have no way of knowing whether there is a speed below which the accused might have been able to safely slow behind the van so as to avoid a collision or to have passed it safely. Of course if he had been driving slower he might have looked up in time to do whatever was necessary to keep his vehicle out of danger. However it does not follow that if he had been driving slower he would have looked up at the same time as he did in the circumstances. In other words, if he had been driving slower, he might have spent even longer looking at the iPod.
Legal Principles
The courts in this state have been guided by judgements of the Court of Criminal Appeal addressing precisely the issue in this case, that is, the distinction between driving in a manner dangerous to the public and driving without due care.
In R v Coventry [1938] SASR 79 at 86, the Court of Criminal Appeal said:
The fact to be proved in this case was that the defendant was driving in a manner which was dangerous to the public, and if it is necessary to attempt a definition we should say that driving in a manner dangerous to the public means the act of driving in a manner which any ordinary person (in the situation of the driver) would recognize as dangerous, in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road – the commonplace incidents of the use of the highway in question under the conditions of modern transport by fast-moving vehicles.
In R v Mayne (1975) 11 SASR 583 at 586, Bray CJ (with whom Hogarth and Jacobs JJ agreed) approved the terms of a summing up to a jury delivered by Napier CJ in the case of R v Duncan in May 1953, , a copy of which was annexed to the report[17]. In that summing up Napier CJ said:
Gentlemen, it is our duty, when we are doing an act fraught with danger to other people, to exercise the degree of care and circumspection commensurate with the danger of the situation we are creating. Realising that, our stature law provides for something like and ascending scale of offences. The least of these is the offence of “driving without due care and attention”. That covers any material departure from the high standard of care which is due to anybody who drives a motor vehicle. It is the standard which gives a civil right of action for damages; but, over and above that, there is a more serious offence of driving in a manner alleged in the information in this case, namely, “driving in a manner dangerous to the public”. I think that the distinction between these two offences is best explained by pointing out to you that all – or at any rate most – of us are liable at times to do things that we ought not to do, and to leave undone things that we ought to have done. When we use the public highway, we must expect to meet people like ourselves – people who are only human beings – with the human tendency to depart, at times, from the full standard of care and skill. That you may regard as negligence – “driving without due care and attention” – but, nevertheless as an ordinary “risk of the road”. If it is a case of “You today, and me tomorrow”, we have to accept the risk as one of the ordinary incidents of modern life. If we live in an age of aeroplanes and fast-moving traffic, we have to take things as they are – the thick with the thin, and you the pedestrian today and tomorrow the driver, are to say where the line should be drawn between a mere lapse from due care and attention and conduct which is plainly blameworthy.
If it is the sort of thing that any of us might be liable to do – although we might be sorry for it afterwards – you may regard it as driving without due care and attention, but, nevertheless, as an ordinary – and in one sense a necessary – risk of any road on which vehicles are driven by ordinary people like ourselves – people who mean well, but sometimes make mistakes. But over and above that, it must be a matter of common knowledge that there are some people who – at times – impose on other users of the road a risk which is by no means a fair or necessary risk of the road. Their driving in a manner which imposes upon other users of the road a risk which any reasonable person, in the situation of the driver, ought to recognise as a real danger to the public. It refers to the sort of risk which is in no sense an ordinary or necessary risk of the road, and to a manner of driving which is treated as a fairly serious crime.
[17] t pages 592-4.
Bray CJ, after commending that summing up, said[18]:
Thus it is customary to distinguish between such departures from the proper standard of care as may be regarded as ordinary risks of the road, even if they would found a civil action, and such a manner of driving exposing other road users to such a risk as "any reasonable person in the situation of the driver ought to recognize as a real danger to the public" (Duncan's case⁽⁸⁾). Moreover it is also customary and usual, and probably, in view of the provisions of s 14a, obligatory, to tell the jury of their power to convict of a lesser offence under that section and to invite them to consider in an ascending order of seriousness whether the manner of driving they find against the accused was not negligent at all or was such as to show merely that he was driving without due care or attention or such as to be dangerous to the public. If they are satisfied beyond reasonable doubt that it falls into the third category, they then have to consider further whether it caused the death alleged.
[18] At page 586.
In Kamleh (1990) 51 ACrimR 435 at 436-7, King CJ, after approving Mayne and Duncan (ibid) said:
The question is not whether the accused intended to drive, or appreciated that he was driving, in a manner dangerous to the public but whether, in the judgment of the jury, a reasonable person in the situation of the driver would have appreciated that he was driving in a manner dangerous to the public.
The crime is committed by the act of driving in a manner which any reasonable person in the situation of the driver would recognise as dangerous in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public. Ordinary risks of the road include those arising from the sort of faulty driving and lack of care which must be expected, due to human frailty, from time to time, from the ordinary driver. The sort of driving which constitutes this crime is more serious than that. It is driving which a reasonable person in the situation of the driver would understand to be such as would give rise to a serious risk of injury to members of the public going beyond the ordinary risks of the road. 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, a crime of causing death or bodily injury by dangerous driving is not committed but the driver is guilty of driving without due care or attention contrary to s 45 of the Road Traffic Act 1961 (SA), a verdict of guilty of which offence is open to the jury by virtue of s 19b(2) of the Criminal Law Consolidation Act 1935 (SA).
In R v Duryea [2008] SASC 363, White J (with whom Anderson and Kelly JJ agreed) rejected an appeal ground which asserted that a trial judge had failed to give sufficient examples of different sorts of driving which fell into each of the categories of driving without due care and driving in a manner dangerous to the public. His Honour said[19]:
[21] It is clear that a direction which distinguishes driving without due care such as that resulting from momentary inadvertence and driving in a manner dangerous is required but I do not consider that, viewed as a whole, the Judge’s directions failed in this respect. The direction in the paragraph which I have numbered [2] indicated clearly enough that “inadvertence and human error” and “minor or temporary lapses in concentration” fell into the category of driving without due care, and not driving in a manner dangerous. The direction in the paragraph numbered [3] identified dangerous driving as driving “which exceeds ordinary carelessness”. Further, when later summarising the prosecution and defence cases, and when making his concluding remarks to the jury, the Judge several times distinguished conduct resulting from “mere carelessness” from dangerous driving. I consider that the jury would have understood that a momentary inadvertence or a momentary loss of concentration by the appellant was not sufficient for the prosecution charges to be sustained.
[19] [2008] SASC 363.
Discussion
Bearing in mind what the above cases say about the comparison between the two sorts of driver dereliction (ie driving without due care and driving in a manner dangerous to the public) it is necessary to go back to examine more closely the accused’s driving, putting the reasonable person in the situation of the driver. What would the reasonable person have observed? Would the reasonable person have recognised the accused’s driving as dangerous, such that it posed a risk of injury and death which exceeded the ordinary risks of the road?
That involves an examination of the accused’s defective lookout. His lookout was defective because he was paying attention to his iPod rather than to his driving. He was looking at the iPod and operating it. He had his attention on selecting music. He was not merely pressing buttons. He was looking at music titles and considering them.
It is not practically possible to say for how long the accused’s attention was away from his driving. He gave various estimates of the distances between him and the van ahead on two occasions. He estimated he first saw the van when it was 400 metres away. He said when he next looked up it was 200 metres away. He then went back to his iPod. He did not look up again until he was dangerously close.
Sergeant Kuchenmeister gave estimates of how long the accused would have had his eyes off the road, assuming various speeds. However those estimates rely upon the accuracy of the distances the accused spoke of, that is the distances of 400 and 200 metres from the van. Sergeant Kuchenmeister said that if the accused was travelling at 111 kilometres per hour and the van travelling at 80 kilometres per hour it would have taken the accused 46.46 seconds to travel the 400 metres between the two vehicles. It would have taken 23.23 seconds to travel the 200 metres[20]. However I do not find these figures helpful. They depend on the reliability of the separation distances referred to by the accused. I am not confident that those distances are reliable. I do not think that the accused was trying to mislead the police, but he may be mistaken. He said himself that he was not good at estimating distances[21].What can be said, however, is that if the accused was distracted by his iPod for anything approaching 20 seconds, that was, in the circumstances, a very long time.
[20] T216.
[21] Page 36 of record of interview.
I approach the lookout question in a less mathematical way. I have no reason to doubt that the accused saw the van ahead of him when it was quite a long way off. He saw it when there was no danger of him colliding with it. Having seen it, he turned his attention to the iPod. He may have looked up again and still seen it a safe distance away. He may, as he says he did, have gone back to his iPod. When he looked up next, he was dangerously close to the van. He was so close that the only way that he could avoid a collision was to brake and turn to the right. He was surprised to have been so close to the van. His surprise arises from his failure to appreciate how quickly he was gaining on the van. Of course, the longer he had his attention on the iPod, the greater his driver dereliction, but I am unable to quantify how long that was. What I think is patently obvious is that it was too long. While he was concentrating on his iPod, he was gaining reasonably rapidly on the van. He was oblivious to the impending danger. He was driving a heavy vehicle and towing a trailer. His capacity to quickly manoeuvre out of danger was compromised by those factors.
The reason for his inattention was not to respond to an emergency within the vehicle. It was merely to select music. As I have said, the exercise was not one of simply pressing buttons. The task required more time and attention than that. It was not the sort of exercise he should have undertaken while he was gaining on another vehicle. While I am not able to determine the time the accused spent with his attention on the iPod, I am satisfied it was not momentary. His inattention to his driving was not momentary.
I am conscious that I should not be influenced in my characterisation of the driving by the consequences of the accident. The fact that two people were killed tells me nothing about the driving. There can be catastrophic consequences from driving without due care. Equally there can be catastrophic consequences where the driving is blameless. For the purposes of determining the accused’s culpability I have regard to the circumstances of his driving. The culpability is not to be determined by reference to what the accused himself saw as dangerous. It is to be determined by reference to whether a reasonable person in his position would have recognised his driving as dangerous. I cannot find the accused guilty unless I am satisfied beyond reasonable doubt that his driving was dangerous to the public.
Conclusion
I am satisfied beyond reasonable doubt that the accused’s driving would have been recognised by a reasonable person in his position as representing an unacceptable risk of danger to the public. The accused was driving a heavily laden vehicle towing a trailer. Those factors required a high degree of vigilance. His inattention to his driving while he operated the iPod was more than momentary. He had either made no judgment about the speed of the van or had totally misjudged its speed. He was oblivious to the rate at which he was gaining on the van while he manipulated the iPod. He knew the van was there, but he drove inattentively towards it. He was inattentive for too long. His lookout was dangerously defective. He was driving in a manner dangerous to the public.
There was no dispute that the accused’s driving was the cause of the rollover. The rollover was the principal cause of the deaths of the two passengers. It was a secondary cause of their deaths that they were not wearing their seatbelts.
Verdicts
I find the accused guilty of both counts of causing death by dangerous driving.