R v Herriot - [2011] SADC 57

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HERRIOT
Criminal Trial by Judge Alone
[2011] SADC 57
Reasons for the Verdict of His Honour Judge Chivell
21 April 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - PROOF AND EVIDENCE
Accused charged with one count of causing death by dangerous driving.
Trial by Judge sitting without a jury.
Elements of offences. Whether driving amounted to dangerous driving or driving without due care.
Verdict: Not guilty, but guilty of aggravated driving without due care.
Criminal Law Consolidation Act, 1935 (SA) ss 19A(1), 19A(3), 19B(3); Juries Act, 1927 (SA) s 7; Road Traffic Act, 1961 (SA) s 45; Evidence Act, 1929 (SA) s 34, referred to.
R v Jaeschke [2007] SAFC 321, applied.

R v HERRIOT
[2011] SADC 57
Introduction

Mr Herriot is charged with one count of causing death by dangerous driving contrary to s 19A(1) of the Criminal Law Consolidation Act, 1935. Particulars of the offence alleged are:
Peter James Herriot on the 8^th day of September 2007 at Purnong Landing, drove a motor vehicle in a manner which was dangerous to the public and thereby caused the death of Bradley Craig Marks.
Mr Herriot entered a plea of Not Guilty to that charge. He elected to be tried by a Judge sitting without a Jury pursuant to s 7 of the Juries Act 1927.
Brief facts
On Saturday 8 September 2007, Mr Herriot had been staying at his family’s holiday home at Caurnamont with his friend Shannon Bing. They watched the football during the afternoon. Mr Herriot said he had three stubbies of beer while he watched the game.
At about 5.30 pm Mr Herriot and Mr Bing left Caurnamont in Mr Herriot’s 1993 Mitsubishi Magna sedan and drove to Teal Flat to see a friend. As the friend was not there, they left Teal Flat and were driving north on Teal Flat Road when the car collided with Bradley Craig Marks, a twelve-year old boy.
As a result of the injuries he received in the collision, Bradley Marks suffered injuries which caused his death.
Bradley Marks had been staying with his family at their farm house located on the eastern side of Teal Flat Road. In and around the property were his mother, Gillian Marks, her partner Mark Meulengraaf, his brothers Brandon and Jahrrad Marks, his grandmother Kay Henshaw, Mr Craig Appledore and Mrs Elizabeth Appledore, and their children Ryan and Lachlan, who were friends of the family, and Mr Meulengraaf’s father Theodorus (Ted) Meulengraaf and his wife Maureen. All of these people were engaged in cleaning and renovating the property, readying it for sale.
There is no evidence of Bradley Marks’ movements prior to the collision. Mr Ted Meulengraaf told me that he was aware that the children had been playing hide-and-seek just prior to the collision. One of the children had asked him if he had seen Bradley but he had not.[1] There is no evidence as to how Bradley Marks came to be in the position where he was hit by Mr Herriot’s car.
[1] T11
Both Mr Herriot and Mr Bing described the lighting conditions as “dusk” at the time of the collision.
Agreed facts
The following facts were agreed pursuant to s 34 of the Evidence Act, 1929.
1Peter James Herriot was the driver of the Mitsubishi Magna sedan vehicle registration number WPV 773 travelling on Teal Flat Road (the accused’s vehicle) Purnong Landing on 8 September 2007 at approximately 5.55 p.m.
2At approximately 5.55 p.m. on 8 September 2007 Bradley Marks was struck by the accused’s vehicle.
3Bradley Marks was struck on the right-hand side of his body.
4Bradley Marks sustained multiple injuries as a result of being struck by the accused’s vehicle.
5Bradley Marks died as a result of multiple injuries.
6Dr Peter Stuart Joyner attended the scene of the collision at 6.50 p.m. on 8 September 2007.
7Dr Peter Stuart Joyner examined Bradley Marks and pronounced his life to be extinct at 7.05 p.m. on 8 September 2007.
8On 8 September 2007 Bradley Marks was 143 cm tall and weighed 35 kg.
9At the time of the collision Bradley Marks was wearing blue jeans and a black T-shirt.
Description of roadway
It is convenient to quote from the report of Mr G.S.J. England, formerly of the SA Police Major Crash Investigation Unit and now a consultant in the private sector. Mr England was called as an expert witness by the Defence and his report is Exhibit P10. I adopt Mr England’s description of the road in the relevant area, as follows:-
Teal Flat Road extends basically north and south and it is constructed with a hard packed sand and gravel surface that is graded to form windrows on each side. At the edges of the road there is a build up of soft powdery sand that is easily disturbed and which showed tyre marks and footprints very easily. Vehicles travelling north at the collision scene travel along a long straight and then travel through an ‘S’ bend. These north bound vehicles firstly ravel around a sweeping right hand bend and then a tighter left hand bend. The collision occurred in the vicinity of the transition from the right hand to left hand bend. The roadway is basically level at the start of the ‘S’ bend, but it falls slightly from about the apex to the right hand bend to the start of the left hand bend. The verge on the eastern side is heavily covered with grasses and low bushes. It rises from the road edge to the area of where the fence alignment would be, but there is no fence at the collision scene. This rise would be approximately 0.3 to 0.4 metres above the level of the roadway.
Mr England first attended at the scene of the collision on Wednesday 8 July 2009, almost two years after the collision. However it was generally accepted that his description of the scene remained accurate.
Case for the Prosecution
Mr Ted Meulengraaf said that he was near the side of the road shifting bricks when he heard what must have been Mr Herriot’s car travelling along Teal Flat Road. He said that the car was travelling “too fast” and was in the middle of the road. He said that it was “snaking”.[2]
[2] T12
Mr Meulengraaf said that the car went past his and then he heard a “bang” and thought the car had hit a tree. He walked in the direction the car had gone until he heard someone calling “help”.[3]
[3] T13
Mr Meulengraaf said that Bradley was lying on the side of the road, on the shoulder. He indicated the position on the aerial photograph, Exhibit P3, but the position indicated cannot be correct. It is clear that the collision occurred much further north than the position indicated by Mr Meulengraaf. Mr Meulengraaf said that he rolled Bradley on to his side because he was bleeding from the mouth, and he was concerned that he might choke.[4]
[4] ibid
Mr Meulengraaf said that he saw that the car was off the shoulder of the road, 10 or 15 metres past it. He said it was facing “north east”, but I think it was more likely, having regard to the rest of the evidence that it was facing south east. South east is certainly more consistent with Mr Meulengraaf’s evidence that it was facing “back towards where it came from”.[5]
[5] T14
Mr Shaun Tidswell, a volunteer ambulance officer, was the first ambulance officer on the scene. He arrived at approximately 6.28 pm.[6] He said that he saw a lady, this was generally accepted to be Ms Gillian Marks, Bradley’s mother, holding him in her arms.[7] He asked Ms Marks to put Bradley down so that he could assess him and begin resuscitation.[8] The place where Bradley was put down is marked on the plan prepared by the police officer Senior Constable Griffiths, Exhibit P1, as position “B”, the “post impact position of deceased”. However, there is now no way of knowing precisely where Bradley came to rest after the collision.
[6]    T22
[7]    ibid
[8]    T24
Mr Craig Appledore said that he came out of the house when Mark Meulengraaf called out, and saw Bradley lying on the edge of the road with the vehicle next to him.[9] Mr Appledore said that he heard one of the men from the car say that “the boy was in middle of the road and they had no where to go”.[10] Mr Appledore said that he jumped in his car and drove off to find Gillian Marks and brought her back to the scene. He said that they parked on the Teal Flat Road side of the accident scene,[11] which means that he must have driven the car through the accident scene at that point.
[9] T27
[10] ibid
[11] T28
Mrs Elizabeth Appledore was operating a ride-on lawnmower on the southern side of a shed on the property when she heard a vehicle coming from the direction of the Teal Flat shacks. She described the vehicle as travelling “quite fast”.[12] She said she saw the driver of the car smiling through the open window. She said that she had earlier seen other vehicles travelling in the same direction and also children on bicycles. She said the vehicle was travelling faster than the other vehicles, and faster than she would drive in that area.[13]
[12] T35
[13] T36
Senior Constable First Class Colin Griffiths attended the scene of the collision at about 9.20 pm that evening with other officers from the SA Police Major Crash Investigation Unit. He took a number of photographs that night[14] and later arranged a number of aerial photographs of the scene.[15] He also took a further group of photographs of the scene at a later time.[16]
[14] Exhibit P2
[15] Exhibit P3
[16] Exhibit P4
The line C1
Constable Griffiths described what he called a tyre mark which ran in a generally north/south direction, east of the edge of the carriageway. The mark is illustrated on the plan, Exhibit P1, and is designated C1. The commencement of the mark can be seen in photograph 22 of Exhibit P2. It is the prosecution contention that this mark was made by the right hand tyre or tyres of Mr Herriot’s car. Mr England described the mark as follows:
This tyre mark commenced on the eastern verge and extends along the inside of a right hand bend at the collision scene. This tyre mark terminates on the road surface approximately 37.81 metres after its start. The plan also shows 2 other tyre marks labelled C2 and C3 which were allegedly made by a left side and a right side tyre on the Mitsubishi Magna sedan after the collision, as the vehicle was travelling backwards.[17]
[17] Exhibit P10, p 2
The line C1 is essentially straight, and runs roughly parallel to the eastern verge of the road until, approximately 4 to 5 metres from the end when it takes a sharp turn to the left, crosses the verge back on to the eastern part of the roadway. As to the last 3 metres or so of the mark which are on the roadway, this was variously described as a gouge by Senior Constable Griffiths, and a furrow by the other expert witnesses.
Mr Andrew Mitton, was formerly a member of the Accident Investigation section of SA Police until retirement at the rank of Senior Sergeant in July 2001. Since then he has operated as a collision analysis and reconstruction consultant.
Mr Mitton said that he attended the accident scene on 23 November 2009, more than 2 years afterwards.
Mr Mitton agreed with Senior Constable Griffiths that the tyre mark C1 “was consistent with having been left by the right side tyre(s) of the Magna.[18]
[18] Exhibit P8 [2.9]
Like the other expert witnesses, Mr Mitton commented on the “generally poor quality of the material provided” as a result of the police investigation, and on the fact that he (and Mr England) did not visit the scene until approximately 2 years later.
Mr Mitton’s reasons for his conclusions are:
·there is too much of a coincidence to accept that the tyre mark at C1 was made by another vehicle;
·while the photographs are poor, the mark appears relatively fresh;
·if it was made by another vehicle it must have been a reasonably short time before the collision in question. The absence of corresponding marks on the carriageway from the left hand tyres of the car can be explained by the footprints and other marks on the road left while attempts were being made to resuscitate Bradley Marks;
·areas of “cleaning” under the Mitsubishi Magna suggests that the vehicle had travelled over the deceased;
·although the pathologist, Dr Cala, stated that “there was no positive evidence to suggest the deceased had been run over by the vehicle”,[19] the absence of indications that a tyre had travelled over the child did not exclude the possibility that the car passed over him causing the number of abrasions noted in the report;
·the evidence was that Bradley was not propelled up on to the bonnet of the vehicle by the collision but was propelled forward. This indicates that his centre of gravity was lower than the height of the bonnet. Since the bonnet height had been measured at 71 cms, and Bradley was 143 cms tall, this suggests that Bradley was crouching when he was struck by the vehicle;
·the “furrow” at the end of the C1 tyre mark was created by the “ploughing front tyre with an exaggerated steer angle induced”;[20]
·if the Mitsubishi Magna had come to rest at the end of C1, it could have been driven forward and then reversed into the eastern side of the roadway, thereby creating tyre marks C2 and C3.
[19] Exhibit P1, p 2
[20] Exhibit P8 [4.7]
Brevet Sergeant Peter McKenzie of the SA Police Forensic Services Branch, inspected the Magna vehicle on 11 September 2007. He took a number of photographs which are Exhibit P12.
He made the following observations:
·he noted damage to the front of the bonnet of the vehicle near the mid-line;
·there was damage to the front grille and it was partially pulled away from the front of the vehicle;
·the front number plate was bent and there was vegetation stuck between the plate and the bumper bar;
·a number of scratches and scrape marks were noted on the underside of the front bumper bar immediately below the number plate;
·although most of the components located on the underside of the vehicle were covered with road grime and grease, the following components had been contacted and some of this grime and grease removed:
-the front cross member;
-the bottom of the left cross member;
-the engine sump;
-the exhaust pipe;
-the side of the left cross member;
-the front of the right lower control arm.
The only eyewitnesses to the collision were the accused Mr Herriot and his passenger Mr Bing.
Mr Herriot said that as he left Teal Flat at about 5.50 pm it was becoming dusk and he had his headlights on.[21] As he drove north and went over the crest just before the collision scene he said that he was travelling at between 60 and 70 kms per hour.[22] The speed limit in the area is 100 kms per hour.
[21] T92
[22] ibid
Mr Herriot said that as he crested the rise and was on the down slope he saw a person standing on the road. He was unable to say which way the person was facing. He said that he steered the car to try to miss the person, firstly to the left, and then to the right because there was a tree on the left.[23] The car spun clockwise and he collided with the boy. He said that the car was on an angle of about 45 degrees to his line of travel when the collision occurred.[24] He said the car continued to rotate clockwise through more than 180 degrees and then rolled backwards off the eastern side of the road. He confirmed that the tyre marks C2 and C3 were made by his car.[25]
[23] T98
[24] T102
[25] T99
Mr Herriot said that as soon as the car stopped he and Mr Bing got out of the car and ran back to where Bradley was lying on his side. He was still breathing. They both called for help and people came quickly. He confirmed that he did say that Bradley had been playing on the road.[26]
[26] T94
Mr Herriot denied that his car was off the road at the time of the collision. He denied that his right hand wheels caused the mark C1. He said that the approximate point of impact was in the middle of the right hand side of the road.[27]
[27] ibid
Mr Herriot said that Gillian Marks, Bradley’s mother, moved his car away from the area. She actually drove back through the scene of the collision to the southern side of the area. He said he knew Ms Marks and recognised her that night. Ms Marks did not give evidence, so I have no evidence as to why she drove the car, and on what part of the road she drove it.
Mr Herriot said that Bradley had been wearing dark clothes, consisting of long pants and a dark shirt. It is an agreed fact that he was wearing blue jeans and a black T-shirt.
Mr Herriot denied that he was driving at an excessive speed in the circumstances and also denied that he was “snaking” to use Mr Meulengraaf’s word, prior to the collision. He said that he was driving on the left hand side towards the middle of the road.[28]
[28] T95
Shannon Bing, the passenger, said that prior to the collision he had been looking out the passenger side window. He described Mr Herriot’s manner of driving as that he “cruised off normally” at about 50 to 70 kms per hour.[29]
[29] T105
Mr Bing said that he heard a thud and that immediately afterwards Mr Herriot hit the brakes and the vehicle spun around. This evidence is inconsistent with the evidence of Mr Herriot who said that the vehicle had begun spinning prior to the collision.
Mr Bing denied that the car had been “snaking” prior to the collision, saying that he thought that they were driving in the middle of the road.[30]
[30] ibid
Expert evidence
The evidence of four expert witness was before the Court. Acting Senior Sergeant Angus Spence, who is attached to the SA Police Major Crash Investigation Unit, attended the scene of the collision on Wednesday 9 September 2009, more than 2 years after the collision. He went with Senior Constable Griffiths and had access to his file. His report is Exhibit P14.
Mr Andrew Mitton was attached to the Accident Investigation Section, later the Major Crash Investigation Unit for many years, until retiring with the rank of Senior Sergeant. He has continued to assist in this area as a private consultant.
Mr Chris Hall is a mechanical engineer and who has practiced as a consultant in this area since 1980. Mr Hall’s report is Exhibit P9.
Mr Graham England was for many years attached to the Major Crash Investigation Unit of SA Police. He retired in 2008 having attained the rank of Senior Sergeant. He now practices as a private consultant. His report is Exhibit P10.
Messrs Spence and Mitton were called by the prosecution. They both favoured the theory that the right hand wheel (S) of the Mitsubishi Magna driven by Mr Herriot made the tyre mark C1 which, as I said, was a relatively straight line running roughly parallel with the eastern verge of Teal Flat Road, but east of the grader reel (the linear pile of dirt left by the grader on the side of the carriageway). Mr England was dismissive of that theory and was more inclined to favour the scenario outlined by Mr Herriot in his evidence, although he accepted that there was no objective evidence at the scene to support it. Mr Hall was unable to draw any conclusion either way. He said that the absence of tyre marks on the road surface consistent with the left hand wheels of the Magna if it was following the line C1, or consistent with all four wheels of the Magna if it was yawing in a clock-wise direction as outlined by Mr Herriot, was “just as much a dilemma”.[31]
[31] T124

Rather than deal with the evidence of each expert separately, I will examine a number of issues which arose during the trial and about which they gave evidence and discuss the evidence of each of them in that regard.
Before doing so, however, it is important to note that each of the experts agreed that the quality of the information upon which they were asked to provide an opinion in this matter was poor. The approximate point of impact between the car and the child has not been established with any accuracy at all. The only evidence as to where the car came to rest afterwards came from Mr Herriot and Mr Bing. The car was moved afterwards by Gillian Marks and driven back through the accident scene. Understandably, since Bradley Marks was still alive when Mr Tidswell, the Ambulance Officer, first arrived, the first priority was his care and attempting to resuscitate him. But no attempt was made by the police that evening to establish, with any degree of precision, the position at which Bradley first came to rest after the accident and before Mr Meulengraaf turned him over. Nor was any attempt made at that time to establish the final position in which the vehicle came to rest either by examining its tyre tracks or by asking any of the eye witnesses that evening. A large number of footprints and vehicle tyre marks on the road surface no doubt placed there by emergency workers and their vehicles and indeed other vehicles which were allowed to pass through on their way to Teal Flat, made it virtually impossible to establish with any degree of accuracy the movement of the Mitsubishi Magna prior to the impact.
The police investigation hinges almost entirely on the proposition that the tyre mark C1 was made by the right hand wheels of the Magna.
Did Mr Herriot’s vehicle make the tyre mark C1?
Senior Constable Griffiths gave evidence that C1 was a tyre mark.[32] The photographs he took of it do not clearly demonstrate what sort of tyre mark it is. Mr Hall said that the absence of tread marks suggests that the vehicle had its wheels spinning under heavy acceleration, or had locked up its breaks under heavy deceleration. If that was the case, he estimated that its speed would have been between 66 and 76 kms per hour.[33] Mr Hall said that it was equally possible that the vehicle which made the mark was travelling south rather than north.[34]
[32] T45
[33] T121
[34] T131
Senior Sergeant Spence said that the tyre mark appeared “reasonably fresh”.[35] There is no evidence from Griffiths, who attended that night, to that affect. I am unable to see how that conclusion can be drawn from the photographs.
[35] T84
If Mr Herriot’s vehicle made C1, could it have made C2 and C3 as well?
Both Mr England and Mr Hall gave evidence that if the Mitsubishi Magna made the tyre mark C1, it is very unlikely that it also made the tyre marks C2 and C3 as well. No attempt was made during the investigation to ascertain whether the tyre marks C2 and C3 were made by the Mitsubishi Magna. Unlike the mark C1, a tyre print is visible on the photographs.[36] If it was confirmed that the tyre track came from the Magna’s tyres, this would make it less likely that the Magna made the mark C1. Mr Mitton suggested that the tyre marks C2 and C3 could have easily have been made simply by the driver of the Magna attempting to do a three point turn after the vehicle had come to rest. For that matter, the marks could also have been made by any other car present at the scene or at some other time prior to the photograph being taken, whenever that was. Mr Herriot said that C2 and C3 were made by the Magna, and that is the only evidence on the topic. There is no evidence from any of the witnesses that Mr Herriot attempted to do a three point turn after the collision. Mr Rofe QC did not suggest to Mr Herriot during cross-examination that he did so. I reject that as a factor.
[36] Exhibit P2, photographs 58 and 59
Absence of entry marks into tyre mark C1
Both Mr England and Mr Hall made the very strong point that in the photographs Exhibit P2, numbers 24 to 26, there is no mark in the soft dust and sand on the eastern side of the road, through the grader reel to indicate where the Magna crossed the grader reel and began making the mark C1 through the foliage. There are plenty of other wheel marks at other locations which clearly demonstrates what happened when vehicles crossed the reel in that general area. I agree with the observation of Mr Hall that the only conclusion that comes to mind from that is that the road was graded after the mark C1 had been made.[37]
[37] T129
Absence of marks made by the left wheel if the right wheel made C1
Another factor is that the police were unable to find a corresponding left hand wheel mark on the roadway itself. Mr Hall said that you would expect to find such a wheel mark, even with the degree of scene contamination which had taken place. The absence of such a mark is “very unusual”, he said.[38] Sergeant Spence agreed that it is unusual that no tyre marks attributed to the left side of the Mitsubishi were visible at the scene,[39] but accepted the suggestion that scene contamination was sufficient to explain this. Mr Mitton drew the same conclusion. Mr England said that the left-hand tyre mark should have been visible had there been one.[40]
[38] T116
[39] Exhibit P 14, p 10
[40] T143
Approximate point of impact
Mr Mitton pointed out that the positions marked by Senior Constable Griffiths as being the point of impact, the point where Bradley Marks came to rest, the position of the two shoes, and the position of the debris found on the ground were all consistent with the line of the mark C1. However, the evidence about this is vague. Bradley Marks’ position of rest, as I have already pointed out, is not known since his mother picked him up at one stage. The position of the first shoe is close to the point which Griffiths identifies as the approximate point of impact, but having regard to the amount of scene contamination that took place, one cannot be sure. Finally, the position of the debris on the ground is inconsistent with the mark C1 having been made by the Magna. The debris is to the right hand side of the wheel mark, whereas the damage was done to the centre of the front of the vehicle. The debris should have been to the left of the wheel mark if the prosecution theory is correct.
Injuries suffered by the deceased
A post mortem examination of Bradley Marks’ body was performed by Dr Allen Cala, forensic pathologist, on 13 September 2007. Dr Cala’s report is Exhibit P16. The report was tendered by consent, and Dr Cala did not give evidence at the trial.
Dr Cala commented in his report[41]
There were numerous injuries to the head, neck, chest and abdominal region with a compound fracture of the right femur. There were right sided rib fractures and evidence of a lacerated liver just below the diaphragm. There was a depressed right parietal skull fracture with a fragment of skull bone detected within the cranial contents.
There was no positive evidence to suggest that the deceased had been run over by the vehicle.
The pattern of injuries suggests that the deceased was struck on the right side.
[41] at page 2
On the prosecution theory, if the Mitsubishi Magna was following the tyre mark C1, then Bradley Marks would have been struck in the “straight ahead” position and projected forwards in the same direction in which the car had been travelling. Since Senior Constable Griffiths marked the position of Bradley Marks’ body after the collision at a point before the end of C1, Mr Mitton suggested that the car must have run over him.
Mr Mitton said that Dr Cala’s comments do not exclude the possibility that Bradley went under the car and was not run over by the tyres. I reject that hypothesis. If the prosecution wished to establish that in evidence, then Dr Cala should have been called and that possibility put to him. Since his report has been put in by consent, I must accept his observation at face value.
The other aspect of Bradley Marks’ injuries is that the photographic evidence of the damage to the Mitsubishi Magna strongly suggests that Bradley was struck at an angle, rather than in the “straight ahead” position.[42] Most of the experts agreed that the dent appears to have been made with the right hand side of Bradley’s head. Mr Hall suggested that the angle of the dent, and the angle of the bent number plate apparent in these photographs, strongly suggests that either Bradley Marks was moving from left to right across the front of the vehicle when he was struck, or that the vehicle was on an angle to Bradley when he was struck. Mr Hall said that in either event, Bradley would have been thrown off to the right-hand side.[43] This last alternative is consistent with Mr Herriot’s description of what happened. Mr England agreed with Mr Hall’s analysis.[44] Senior Sergeant Spence was not prepared to draw any conclusions from the angle of the mark.[45].
[42] Exhibit P2, photographs 1 to 5
[43] T112-113
[44] T136
[45] T83
Finally, the fact that Bradley was not propelled up over the bonnet and into the windscreen suggests that his centre of gravity was much lower than the height of the bonnet of the vehicle so that his head was just above the height of the bonnet. The evidence is that the height of the bonnet was 71 cms, and Bradley was 143 cms tall. It therefore seems clear that Bradley was crouching if not totally, then at least partially when he was struck by the vehicle.[46] Since he was not propelled up over the bonnet and into the windscreen, it seems likely that he was projected forward after the collision. Excluding the possibility that the car ran over him, it seems that the only other plausible explanation is that he was struck on an angle, and his body was propelled out to the right as suggested by Mr Hall.
[46] see the evidence of Spence (T83), Hall (T125)
Conclusions on the expert evidence
It is impossible to reconcile all of these opinions. I am not satisfied beyond reasonable doubt that the line marked C1 on the plan Exhibit P1 was made by the right hand wheel (S) of the Mitsubishi Magna driven by Mr Herriot. The absence of evidence of where the vehicle crossed the grader reel and left the carriage way of Teal Flat Road, together with the absence of evidence of a left hand wheel mark which corresponds to C1 are of particular concern. Also of concern is the absence of evidence to support Mr Herriot’s version of the position of his car on the road. There are only two explanations for this absence of evidence. Either these marks were obliterated at the scene that night, or they were not discovered because of an inadequate inspection of the scene.
I agree with the comment of Mr Hall that there are “too many imponderables”[47] in this case to enable me to form any definitive conclusions as to the movements of the vehicle prior to the collision from the physical evidence at the scene.
[47] T128
Findings of fact
I am therefore of the opinion that the only findings of fact which I can make beyond reasonable doubt are based upon the agreed facts, and Mr Herriot’s own evidence. I therefore find that I am satisfied beyond reasonable doubt that at about 5.55 pm on 8 September 2007, Mr Herriot was driving his Mitsubishi Magna sedan, with its headlights on, at about 60 to 70 kms per hour, on a dirt road, and in an area where the speed limit was 100 kms per hour, and that as he crested a rise on Teal Flat Road and began negotiating the down slope he saw Bradley Marks on the carriageway. Mr Herriot’s evidence is not sufficiently clear to indicate whether Bradley was moving or stationary on the roadway although his evidence tends to suggest that he was stationary. He was probably in a crouched, or semi-crouched, stance. When attempting to take evasive action, Mr Herriot lost control of the vehicle as a result of which it began to rotate in a clockwise direction. In the course of that rotation, the vehicle struck Bradley in the centre of the eastern carriageway, as a result of which Bradley was propelled to the right and fell on the verge of the road as described by Mr Meulengraaf. The Magna vehicle continued to rotate clockwise until eventually it rolled backwards off the eastern verge thereby making the tyre marks C2 and C3.
Elements of the offence
In order that Mr Herriot be convicted of causing death by dangerous driving, the prosecution must prove beyond reasonable doubt each of the following elements:
1that he drove the motor vehicle in a manner which was dangerous to the public;
2by that dangerous driving he caused the death of Bradley Marks.
As to the first element, the relevant authorities were referred to by Doyle CJ in R v Jaeschke[48] His Honour wrote:
In McBride v The Queen (1966) 115 CLR 44 the High Court considered the meaning of driving in a manner dangerous to the public. In a passage often referred to with approval in later cases, Barwick CJ said at 49-50:
“The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public, but the need for death or injury to a person to result from impact with a vehicle so driven may make that question unlikely to arise, though the possibility of its doing so must be acknowledged.”
In Jiminez v The Queen (1992) 173 CLR 572 the High Court referred with approval to this passage. The majority (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) said at 579:
“The manner of driving encompasses "all matters connected with the management and control of a car by a driver when it is being driven" R v Coventry (1938) 59 CLR 633 at 639. For the driving to be dangerous for the purposes of s 52A there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention. Although a course of conduct is involved it need not take place over any considerable period. (footnotes omitted)”
The concept identified in these passages is clear enough, although its application to a given set of circumstances may require careful assessment.
It is the practice in this State for judges to direct juries in accordance with these principles. The form of the direction commonly given is based on a direction given by Napier CJ in The Queen v Duncan, which appears as a note to the report of the decision in The Queen v Mayne (1975) 11 SASR 583. There, Bray CJ said at 585:
“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). 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. (footnote omitted)
[48] [2007] SAFC 321 at [33-34]
So, in order to prove the first element, the prosecution must demonstrate that the manner of driving was such a grave departure from the standard of care expected of a road user that it imposed a risk which any person in the position of the accused would recognise as a real danger to the public.
This offence is created by s 19A(3) of the Criminal Law Consolidation Act, 1935. Section 19B(3) provides that if I am not satisfied that Mr Herriot is guilty of the offence charged, I may bring in a verdict that he is guilty of a less serious offence to which that subsection applies. In this case, the less serious offence is driving without due care, contrary to s 45 of the Road Traffic Act, 1961.
The distinction between the two offences is one of degree. Driving without due care is a departure from the standard of care expected of a reasonable driver in the position of the accused, but which is not so serious as to fit the criteria for driving in a manner which is dangerous to the public which I have already outlined.
Application of law to facts of the case
In my judgment, Mr Herriot’s failure to see Bradley Marks on the road in front of him, until it was too late to brake or take other effective action to avoid a collision, was a departure from the standard of care to be expected of a driver in his position, but not such a grave departure from that standard as to constitute dangerous driving. The reason why he failed to see Bradley on the road is not apparent on the evidence. The reason why he lost control of the vehicle is also not apparent. It may be that the swerve to the left and then a correction to the right, on a loose surface, caused the vehicle to lose traction. It is to be noted however that it was dusk, Mr Herriot had his headlights on and Bradley was dressed in dark clothing. I do not dismiss the possibility that Bradley ran across the road in front of the vehicle. That having been said, I also take into account the evidence of Sergeant Spence that when he checked the scene, the position in which Bradley Marks apparently crossed the road was there to be seen 60 or 70 metres away for vehicles travelling in the same direction as Mr Herriot’s vehicle.[49]
[49] T88
In my view, that evidence is sufficient for me to be satisfied beyond reasonable doubt that Mr Herriot is guilty of the offence of driving without due care.
It is an agreed fact that Bradley Marks died as a result of being struck by Mr Herriot’s vehicle. In those circumstances, Mr Herriot is guilty of the aggravated offence of driving without due care.[50]
[50] Road Traffic Act 1961, s 45(3)(a)
Verdicts
Having made those findings beyond reasonable doubt, my verdict on the charge of causing death by dangerous driving, is “Not Guilty”, but “Guilty” of aggravated driving without due care.