R v Hutchinson - [2016] SADC 151

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v HUTCHINSON
[2016] SADC 151
Ruling of His Honour Judge Chivell
12 December 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
Defendant pleaded guilty to aggravated causing harm by dangerous driving – circumstance of aggravation was driving the vehicle while his blood contained methylamphetamine. In mitigation of sentence, defendant claimed he did not knowingly ingest the methylamphetamine but that it must have been contained in a cannabis mixture he had smoked the previous weekend.
Finding: Defendant failed to prove on the balance of probabilities that his ingestion of methylamphetamine prior to the collision was inadvertent.
Criminal Law Consolidation Act 1935 (SA) s 19A(3); Road Traffic Act 1961 (SA) s 47BA, referred to.
R v Olbrich (1999) 199 CLR 270, considered.

R v HUTCHINSON
[2016] SADC 151

Mr Hutchinson has pleaded guilty to aggravated causing harm to Mr Ronald Collett by dangerous driving.[1] This is an aggravated offence because he was driving the vehicle while his blood contained 0.02 mg/L of methylamphetamine.[2]
[1] Criminal Law Consolidation Act 1935, s 19A(3).
[2] Road Traffic Act 1961, s 47BA.
The offence occurred on 17 February 2014 on Torrens Road at Rosewater, near the intersection of Torrens Road and Fussell Place.
There is a factual dispute between the prosecution and the defence. Mr Hutchinson admits that he had methylamphetamine in his system at the time of driving, but he says he did not knowingly ingest it. He says that the only possible source of the methylamphetamine was the cannabis that he had smoked over the weekend. He says it might have been laced with methylamphetamine without his knowledge.
The prosecution disputes this claim.
If Mr Hutchinson’s claim is accepted, it would be a mitigating factor in the determination of the penalty to be imposed. Accordingly, the onus is on Mr Hutchinson to satisfy me of the truth of his claim. I must be satisfied about that on the balance of probabilities.[3]
Mr Hutchinson’s Evidence
[3] R v Lobban (2001) 80 SASR 550 at [26]-[33] per Martin J, citing R v Olbrich (1999) 199 CLR 270, R v Storey [1998] 1 VR 359 at 369.
The Incident
Mr Hutchinson gave evidence on oath. He told his counsel, Mr Lang, that:
·he is 21 years old;
·at the time of the incident, he had two different jobs – during the day he worked for ‘Solchek’, concreting and installing ‘Tactiles’ until 3 pm, and then at night he worked as a night filler for Coles in the city;
·he had personal difficulties at that time in that he had recently broken up with his partner of five years, and his friend had committed suicide within the last week;
·on the weekend before the incident, he had smoked some ‘marijuana’ with his brother. He had purchased it from an ‘old friend’. He did not knowingly consume methylamphetamine. He observed that the marijuana had ‘crystal-like around it’ which ‘could have been caused by a chemical or it was laced with something’;[4]
·he was driving the vehicle which collided with Mr Collett;
·he had not seen Mr Collett before striking him on the road;
·he accepted that his car had veered into the kerb on the incorrect side of Torrens Road as observed by the police;
[4] T 6.
In cross-examination, Mr Hutchinson gave the following evidence:
·he swerved to the right after he saw Mr Collett in order to try to avoid hitting him;[5]
[5]    T 31.
·he collided with Mr Collett before he impacted with the kerb. He was unable to explain how it was that the mark on the kerb which the police officers attributed to his vehicle was 17 metres before the approximate point of impact with Mr Collett;[6]
[6]    T 6-7.
·he accepted that it was ‘quite possible’ that he collided with Mr Collett before he impacted the kerb, but this was not his memory of what happened;[7]
[7]    T 43.
·there was a black four-wheel-drive coming towards him on Torrens Road;[8]
[8]    T 14.
·the black four-wheel-drive was actually on Fussell Place on his left and that was the reason why he could not swerve left to miss Mr Collett (Mr Hutchinson’s evidence about the black four-wheel-drive was very confused – at one point it was facing him, at another point it was on his left on Fussell Place, yet again it did a U-turn[9] onto the wrong side of the road);
[9]    T 35, T 36.
·he did not see Mr Collett because he was looking down at the speedometer and his mirrors, then he ‘looked back up and that’s when I seen him, yeah, in front of the wheel, bang’;[10]
[10] T 15.
·he did not see anyone on the road prior to that;
·he was feeling ‘pretty exhausted from work’ at that time;
·he was also suffering from ‘exhaustion, from the loss of my mate hanging himself trying to come through that, and down because after five years me missus and me broke up’;[11]
[11] Ibid.
·he did not feel any effects of the marijuana he had smoked the night before;[12]
·he denied that he went to sleep at the wheel;[13]
·he accepted that he was having difficulty concentrating and focussing on the road;[14]
·he did not feel affected by methylamphetamine at the time of the accident;[15]
·he accepted the possibility that the drugs may have been affecting him without him being aware of this;[16]
·he described the marijuana as having ‘crystals all on the outside’ as if ‘someone rolled the buds in flour … But it didn’t look like powder, it looked like crystals’;[17]
·he was not concerned about the crystals, ‘I just thought it was a chemical used in the growing procedure of the marijuana’;[18]
·he did not mention this crystal-laced marijuana to the police during the interview because ‘it would have all left my system by Monday’;[19]
·Mr Collett ‘was trying to move quickly’ when he first saw him;[20]
·he did not see the other pedestrian, Ms Campbell.[21]
[12] T 17.
[13] Ibid.
[14] T 19.
[15] T 16.
[16] T 19.
[17] T 24.
[18] T 26.
[19] T 30.
[20] T 32.
[21] T 41.
Prosecution Evidence
The evidence of the facts giving rise to the charge is contained in the statements of the police officers and of Ms Campbell and Mr Pawlisz, and in the reports of Professor White and Ms Nash. Mr Hutchinson does not dispute this evidence. The evidence establishes the following facts.
On Monday, 17 February 2014 at approximately 4 pm, Mr Hutchinson was driving west along Torrens Road. Ms Campbell was crossing the road from south to north with Mr Collett. She looked down Torrens Road before crossing, and saw a car travelling west. She decided it was far enough away for her to cross the road safely.[22] It was about 50 metres away. This was the only car she saw on the road. She and Mr Collett then crossed the road towards the northern side. As the car approached, it crossed to the incorrect side of the road.
[22] Statement of Claire Nicole Campbell 27/5/14 p.1.
Approximately 18 m before the impact with Mr Collett, Mr Hutchinson’s car collided with the northern kerb. Mr Hutchinson then steered the car sharply to the left, so that it was at an angle as it struck Mr Collett within the eastbound traffic lane. This analysis is supported by the damage to the car and the scuff marks on the kerb. The scuff marks extended for approximately 4.8 metres.[23] I reject Mr Hutchinson’s evidence that he swerved to miss Mr Collett and hit the kerb after the impact. On the physical evidence, that is not possible.
[23] Statement of Jaimi Paula Burns 22/05/14 p.3.
Senior Sergeant David Kuchenmeister, the police accident reconstructionist, analysed the physical evidence associated with the accident scene. His conclusions were:[24]
After reviewing the scene, photographs and the material made available to me in relation to this collision, it is my opinion that the Holden sedan was travelling in the westbound (sic) traffic lane, or incorrect side, of Torrens Road.
The right side wheels of the Holden have impacted with the northern concrete kerb causing scuffing and damage to the kerb and the wheels of the vehicle. The vehicle has then steered or driven away from the kerb at an angle, most likely in an attempt to return to the correct side of the road. At a point adjacent to a constructed pedestrian ramp the front of the Holden struck a pedestrian who was most likely facing and/or walking in a northerly direction across the roadway.
At impact the pedestrian has been swept laterally across the bonnet into the windscreen before rotating into the air and being projected forwards.
The pedestrian was thrown through the air in a general westerly direction, striking the ground before sliding and/or rolling to rest. The Holden sedan continued to travel west before stopping in a nearby side street.
The approximate speed at which the vehicle struck the pedestrian was between approximately 48 kilometres per hour and 58 kilometres per hour.
I accept Senior Sergeant Kuchenmeister’s conclusions.
[24] Statement of David Ross Kuchenmeister 20/5/14 pp 20-1.
Medical Evidence
Professor Jason White, a respected expert in the area of pharmacology and the effects of drugs and alcohol on human behaviour, provided a report.
Professor White expressed the following opinion:[25]
[25] Report of Jason Mark White 2/6/14 p.4.
Effects of methylamphetamine on Mr Hutchinson
The concentration in the blood sample from Mr Hutchinson is a low one and indicates that his general behaviour and mental state and driving would not have been significantly affected by the direct effects of methylamphetamine at the time of the crash. However, it is possible that this low concentration was a result of consumption of methylamphetamine many hours prior to the crash and that prior to the crash the concentration of methylamphetamine in Mr Hutchison’s blood had been much higher than the recorded value of 0.02 mg/l.
If this was the case, then at the time of the crash Mr Hutchinson may have been experiencing the rebound effects from this earlier, higher concentration of methylamphetamine. As described above, these rebound effects include failure to attend to the road and to concentrate on driving, slowed reaction time and impaired control of the vehicle.
Mr Hutchinson worked very long hours because of his two jobs and his use of methylamphetamine could have been for the purpose of maintaining alertness while working and to counteract the effects of fatigue. While the drug is effective in this regard, the level of fatigue that develops as the effects of the drug diminish can be very pronounced. A person experiencing this rebound effect may appear very sleepy, as was noted regarding Mr Hutchinson when he was at the hospital.
The nature of the crash, with Mr Hutchinson moving initially to the wrong side of the road, is consistent with the types of motor vehicle accidents that occur with drivers found to have methylamphetamine in their blood.
I accept Professor White’s opinion about Mr Hutchinson’s condition at around the time of the collision. I agree with Professor White that it is consistent with the rebound effects of methylamphetamine use. Professor White observed:
A study of fatal crashes involving methylamphetamine reported that such crashes are characterised by the affected driver drifting out of the lane of travel or off the road, travelling at high speed, moving into oncoming traffic, and crossing a road into oncoming traffic. This is consistent with my experience of crashes involving methylamphetamine affected drivers in South Australia.
There were traces of 11-nor-9-carboxy-∆⁹-THC found in Mr Hutchinson’s blood. This is a metabolite of tetrahydrocannabinol, or THC, the active component in cannabis. Professor White observed that THC itself was not present. The metabolite is merely a marker of past use of cannabis. The absence of THC indicates that Mr Hutchinson was not under the influence of cannabis at the time of the accident.[26]
[26] Report p.5.
Analysis
The prosecution did not offer any evidence contrary to Mr Hutchinson’s version of how the methylamphetamine got into his system. However, the onus is on Mr Hutchinson to satisfy me of the truth of his assertion that it is more probable than not that he had not knowingly ingested the methylamphetamine.
In his interview with the police, Mr Hutchinson said ‘I haven’t touched (it) in a while’, referring to marijuana.[27] In his evidence, he admitted that he did not tell the police the truth about the marijuana because ‘I was a bit scared. I had it on the weekend. I thought it was only in the system for eight hours. I thought it would have already been out when I went to work that day.’ [28]
[27] Record of Interview, p.20.
[28] T 29-30.
In cross-examination, Mr Hutchinson was asked, ‘What was the reason you decided to swerve to the wrong side of the road?’ [29]
[29] T 13.
There were four different answers to this as cross-examination developed. In summary:
·Mr Hutchinson saw Mr Collett and tried to avoid hitting him.[30]
·There were trees and cars to the left so he could not swerve in any other direction.[31]
·There was a four-wheel drive directly in front of Mr Hutchinson’s car as he was travelling.[32]
·Another car was coming towards him on the wrong side of the road.[33]
[30] T 13.
[31] T 31.
[32] T 35.
[33] T 34.
Mr Hutchinson asserted the four-wheel drive was a different vehicle from the ‘other car’. He said:[34]
Yeah, he was coming towards my car on that same road as the, the black four-wheel drive.
[34] T 34.
In his interview, Mr Hutchinson told the police that if he had veered left, he would have hit the car coming to the intersection.[35] When prompted, this was further explored and he suggested that the car was possibly a dark four-wheel drive.[36]
[35] Record of Interview, p.15.
[36] Ibid. p.17.
The inconsistencies and self-contradictions in Mr Hutchinson’s various accounts leave me with little confidence that he is telling the truth.
Conclusion
I found Mr Hutchinson’s evidence entirely unconvincing. He was a very unimpressive witness. His demeanour in giving evidence was evasive and he simply refused to confront the implausibility of his story. His version of events is contradicted by Ms Campbell and Mr Pawlisz,[37] both of whom said there were no other cars on Torrens Road at the time of the collision. It is contradicted by the physical evidence as interpreted by Senior Sergeant Kuchenmeister, particularly as to whether his vehicle collided with Mr Collett or with the kerb first.
[37] Statement of Patryk Filip Pawlisz 22/9/16 (who witnessed Mr Collett landing on the road surface).
In all the circumstances, I am not satisfied on the balance of probabilities that Mr Hutchinson’s ingestion of methylamphetamine prior to the collision with Mr Collett was inadvertent. I reject his submission about that.