R v James - [2012] SADC 2

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JAMES
Criminal Trial by Judge Alone
[2012] SADC 2
Reasons for the Verdict of His Honour Judge Cuthbertson
19 January 2012
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH - SOUTH AUSTRALIA
Accused charged with Aggravated Causing Death by Dangerous Driving.
HELD: Elements of offence proved beyond reasonable doubt. Verdict: Guilty.
Criminal Law Consolidation Act 1935 s 19A(1), referred to.
R v S (1991) 22 NSWLR 548; R v Breuker [2011] SADC 64; Police v Brine [2011] MCTAN-10-803 as per McEwen SJ; R v Palmer [2008] SADC 122; Queen v Duncan (1953) 11 SASR 592; Senior v Police [2005] SASC 88; Ardill v Police [2005] SASC 450; Tidswell v Police BC9804255; R v Payne BC8500019; Lehmann v Police [2010] SASC 102, considered.

R v JAMES
[2012] SADC 2
Introduction

The accused stands charged with Aggravated Causing Death by Dangerous Driving contrary to s 19A(1) of the Criminal Law Consolidation Act 1935.
Particulars of the offence against him allege that he, on 4 April 2010 at Yongala, drove a motor vehicle in a culpably negligent manner, or in a reckless manner or at speed or in a manner which was dangerous to the public and thereby caused the death of Luke Jonathon Burke.
The circumstance of aggravation alleged is that he committed the offence while there was present in his blood a concentration of more than .08 g of alcohol per 100 ml of blood.
The accused is alleged to have been driving his Holden Commodore motor vehicle around the small township of Yongala, with passengers. He lost control of the vehicle causing it to roll over on its roof and come to rest in a culvert near some silos adjacent to the town. The deceased was partly ejected from the vehicle and died as a result of injuries sustained from the collision. The accused told police that he has no recollection of who was driving the vehicle.
Issues arise as to proof of the identity of the driver as well as issues of whether there could be said to be any danger to members of the public, insofar as members of the public might exclude persons in the motor vehicle and whether the persons in the motor vehicle were party to the dangerous driving and hence could not be regarded as members of the public endangered by the driving for reasons of their being party to the dangerous driving.
Facts not in Dispute
Easter Saturday 3 April 2010 was the birthday of the witness Gladwell. On that evening he met up with friends Burke the deceased, Yates and James the accused. They had some drinks at a private residence and the Peterborough Hotel.
Later in the evening they travelled to the Federal Hotel in the main street of Peterborough where McCready worked as a barmaid. She was the girlfriend of Burke. They had some drinks at the Federal Hotel and at about 1.30 am McCready finished work and bought a jug of cocktail and joined them in drinking.
At closing time they left in the accused’s Holden Commodore vehicle. The accused was driving, Yates was sitting in the front seat, Gladwell was in the back on the right, McCready was in the middle and the deceased was on the left.
As they left the car park they encountered MacAdam, the local police officer, driving in the opposite direction.
They had all had a significant amount of alcohol to drink. Their vehicle turned right onto Railway Terrace to travel in an easterly direction parallel with the main Sydney / Perth railway line which runs through Peterborough.
It is not entirely clear whether they were originally heading for the accused’s premises where his former girlfriend was looking after their children or not, but in any event it seems clear that a decision was made to avoid Constable MacAdam given their state of intoxication.
The vehicle proceeded in an easterly direction from Railway Terrace onto the dirt road that proceeded alongside of the railway line to the nearby township of Yongala. Yongala is a small town about 13 or 14 km from Peterborough. Silos are located alongside the main railway line from Jamestown. The silos are no longer serviced by the railway line which, with its new alignment passes about 100 metres from the silos to the east.
There are about 30 to 40 inhabitants of the town. All the shops are closed down, the local hotel was closed about 12 to 18 months ago and the inhabitants are mainly farm workers who work in the area.
The main road to Jamestown from Peterborough travels through the town. It is frequently used by semi-trailers making the trip to the east coast from Perth as there is difficulty taking trailers across Horrocks Pass from Port Augusta to Wilmington and hence most trucks travel towards Port Pirie from Port Augusta and take the turn off to Crystal Brook and then to Jamestown and thence Peterborough and beyond. (See Exhibit P4 – Map of Yongala)
Resolution of Factual Issues
There is a divergence of evidence as to whether, when the vehicle arrived in Yongala, the occupants proceeded directly to the silos or lingered in the main street attempting to perform “donuts”.
I should say at this stage that I have no difficulty in accepting that all the eye witnesses, that is the persons in the vehicle who gave evidence, were endeavouring to tell the truth. Any divergence in their evidence is explicable by intoxication, forgetfulness and trauma from the accident.
The difference may be explained by the fact that the dirt road from Peterborough comes out at the railway line which is next to the silos but, on balance, I prefer the evidence that the vehicle went to the main street first as McCready is the only witness who claims to the contrary.
In the main street the driver of the vehicle (the deceased) commenced to try to perform donuts. Donuts are the black circular skid marks left by a vehicle that spins its rear wheels but has its steering wheel on hard lock so that rather than travelling forward the vehicle simply pivots around the front wheels causing circular skid marks.
The vehicle was unable to do this because of the weight in the back. Two of the three people in the back were large individuals.
It seems clear that at some stage the driving was taken over by Yates who had been sitting in the front passenger seat and he tried to perform donuts in the main street also without success.
The preponderance of the evidence, which I accept, suggests that thereafter the accused got back into the driver’s seat and the vehicle proceeded to the area around the silos.
The silos are surrounded by a flat unpaved area, no doubt used for access, and parking by grain trucks in the grain season. At the time of these events in the early hours of the morning of 4 April 2010 there were no vehicles in attendance at the silos as it was not grain season.
At the silos the driver of the vehicle, the accused, drove around them doing yaws. This is when the vehicle’s rear commences to skid and come out of alignment with the front wheel tracking due to the principles of centrifugal force. Yates also did this. He also had a drive.
After this the vehicle went back to the main street, about 200 yards away, and more attempts were made at donuts or spinning the wheels in the intersection.
Finally the vehicle returned to the area of the silos near the weighbridge and it was stopped so some of the occupants could urinate.
I am satisfied that when everyone got back into the car the intention was to travel back into Peterborough and it was on this journey, and just having left the vicinity of the weighbridge, that the accident occurred while the accused was driving.
The accident occurred when the vehicle, having left the vicinity of the weighbridge at a high rate of acceleration (see McGrath, T279), went to make the left hand turn at the end of the road to travel towards the main road to Peterborough.
The vehicle’s rear wheels skidded to the right hand side as the vehicle was turning to the left. The vehicle could only have skidded to the right hand side because the vehicle was travelling too fast for the amount of turn on the front wheels. In other words, the centrifugal force operating on the rear wheels caused by the turning of the front wheels to the left must have been greater than the adhesion of the rear wheels causing them to break and slide.
I note expert evidence from Senior Constable Spence (T336), that the vehicle should have been able to perform the task of making a left hand turn on this corner at 45 km / hour without losing traction and spinning out.
At the time of losing traction the vehicle was travelling at about 44 – 48 km/h. Its front wheels must have been turned to the left tighter than was necessary to complete the turn.
There is no doubt that as a result of the accident the deceased died. (See Statement of Agreed Facts P16)
The relevant legal principles
Onus of Proof
There is a presumption of innocence and the accused is regarded as innocent unless or until guilt has been proved beyond reasonable doubt.
Burden of Proof
The burden of proving the charges lies upon the prosecution; the accused does not have to prove anything.
That means that nothing short of proof beyond reasonable doubt is sufficient.
Each of the elements of the count must be proved beyond reasonable doubt before I can return a verdict of guilty.
Accused did not give evidence
The accused did not give evidence. It is not to be held against him that he did not give evidence. I am to draw no adverse inference from the exercise of that right.
Other acts of delinquent driving
Evidence has been led of bad driving behaviour of the accused at Peterborough and en route to Yongala. In addition evidence of bad driving behaviour has been adduced occurring in the main street of Yongala and in the vicinity of the silos. This evidence is not to be used to show that the accused is a bad person or has a propensity to drive dangerously.
It is admissible to show the manner in which alcohol had affected the accused on that night and to show the degree of care or lack there of that he was exhibiting at around about the time he was involved in the accident and that his driving at the relevant time was more likely to have been intentionally delinquent.
They are the only purposes for which this evidence may be used.
Accused’s Lack of Memory
The accused claimed not to be able to remember the circumstances surrounding the accident and immediately before the accident. That remains a reasonable possibility as no evidence has been called refuting it and it derives support from the injury of the accused (See Exhibit P16 - Statement of Agreed Facts) and the evidence of his conduct immediately following the accident. I have carefully considered the evidence of the other witnesses and in particular whether there might have been some mitigating factor which the accused is unable to recall that may have been relevant to his driving behaviour.
Given the number of eye witnesses in the car I am confident there was no hidden or unremembered feature which may have been created or existed so as to explain the accused’s driving behaviour.
Elements of the offence
The accused is charged with Aggravated Causing Death by Dangerous Driving.
The elements of the offence which must be established beyond reasonable doubt are as follows:
1.That the accused was the driver of the motor vehicle at the relevant time.
2.That the driving of the motor vehicle was a voluntary and intentional act on his part.
3.That the manner of driving was a danger to the public.
I have directed myself on the nature of driving in a manner dangerous to the public on the basis of the time honoured charge to the jury of Napier CJ on 8 May 1953 as reported in the Queen v Duncan[1].
4. That the dangerous driving caused the death of the deceased.
The issues
[1] (1953) 11 SASR 592
Is it proved beyond reasonable doubt that the accused was the driver at the time of the accident?
This issue arises because the accused, in his record of interview with the police, told the police that he could not remember who was driving the vehicle. It gains traction from the fact that there is some evidence that at some stage the front seat passenger Yates did in fact drive the vehicle in Yongala whilst it was being driven erratically.
The evidence from which an inference may be drawn that the accused was the driver at the relevant time
1. The accused was the registered owner of the vehicle. It was the accused’s vehicle.
That fact in itself makes it more likely that the accused would have been the driver.
2.It was the accused who did most of the driving, he did the driving from Peterborough to Yongala and there can be no doubt that he drove the vehicle in the main street and around the silos at least for part of the time.
3.The accused’s blood was located on the driver’s side door. (See P17 Further agreed facts document concerning blood stains)
There is evidence that as a result of this accident the accused bled and that his blood was found on the door of the car. It is true that the blood could theoretically have been deposited there on an earlier occasion as the scientific testing involved no ageing of the blood detected. It is also theoretically possible that the blood was deposited by another person. It is however an item of circumstantial evidence. I do not rely on it as a piece of evidence which, on its own, leads to the inference that the accused was the driver.
4. The accused was located in the vehicle on the driver’s side albeit on the driver’s roof area of the car because the car was upside down.
In my view this is the most significant evidence. It is true that no seatbelts were worn by any of the passengers which gives rise to a theoretical possibility that bodies could have moved around in the car yet the deceased would appear to have been in the place in the overturned vehicle where one would expect him to be having regard to him being a back seat passenger and the accused was in the place one would expect him to be if he was the driver.
5.There is specific evidence from two witnesses that it was the accused that was driving the car at the relevant time. (Evidence of Gladwell and Yates)
It is true that Yates did not mention that he had been driving the car for part of the time while they were at Yongala when spoken to by police on the first occasion. I do not take that as diminishing from his credibility. I accept his evidence that he was not the driver at the relevant time. It is corroborated by the evidence of various victims after the accident as to the location of individuals and the circumstantial evidence I have referred to.
Even if his evidence was not to be considered at all I would still consider the accused’s location in the car and the evidence of the other witnesses sufficient to establish that the accused was the driver.
Admissibility of Admission by Accused while in the Car the he was the Driver
I make no ruling on the admissibility of the admission by the accused to Sergeant MacAdam, at the scene, that he was the driver. I simply ignore it as I am of the view beyond reasonable doubt that the accused was the driver at the relevant time on the other evidence from which I am prepared to draw the relevant inference.
I find beyond reasonable doubt that the accused was the driver of the car at the time of the accident.
Was the driving the voluntary and intentional act of the accused?
There is no evidence of any coercion or mental or drug induced instability (aside from a degree of alcoholic intoxication) which indicates a lack of voluntariness or intention to drive and I find the driving by the accused was both voluntary and intentional.
Was the driving dangerous to the public?
We are here dealing with the driving that caused loss of control on the corner when the vehicle rolled over. We are not concerned with other driving in Peterborough or on the road to Yongala or at Yongala in the main street or while driving around the silos.
That evidence is not admissible to show that the accused had a propensity to drive dangerously and was therefore more likely to have been a dangerous driver on this occasion.
It is, however, relevant to cast light on the nature of the enterprise in visiting Yongala and the way in which alcohol had acted upon the occupants of the car.
In particular it shows that, on the relevant occasion, at the relevant time, the accused’s inhibitions about delinquent driving had been dulled and his risk taking had been enhanced. It tends to show that at the particular time he had a cavalier attitude to the road rules and to the manner in which he drove a motor vehicle.
It tends to indicate that his driving on the occasion when the accident occurred was deliberately fast.
At the time of the driving the accused had a blood alcohol level of at

least .1 g of alcohol per 100 ml of blood. (See P8 Statement of Peter Felgate, Exhibit P4) This would have made the accused act and feel self confident and be less cautious and inhibited than normal. Impairment occurs in most skilled tasks including driving at that level of intoxication. (See P8 Statement of Peter David Felgate, Exhibit P4)
The accused argues that everyone in the motor vehicle knew that the vehicle was being driven dangerously and everyone was party to an escapade to do so. It is said that, at the very least, it is a possibility that everyone was party to an escapade to drive dangerously and was part of a joint enterprise or aided and the activity of dangerous driving.
The only potential members of the public to be endangered, it is argued, were the occupants of the car and because they were part of a joint escapade, in accordance with the principle enunciated in R v S[2], they could not be members of the public.
[2] (1991) 22 NSWLR 548
It is said that when the accident occurred in the early hours of the morning there were no members of the public nearby and in the silo area of Yongala.
I agree that it is reasonably possible that every one of the occupants of the car may have, by their presence and / or words and / or conduct encouraged the driver to drive in a delinquent fashion and that it was reasonably possible that each was part of an escapade to drive in a delinquent fashion.
I note that R v S has been followed in the District Court cases of R v Breuker[3] and R v Palmer[4]. It has been distinguished in the Youth Court case of Police v Brine[5].
[3] [2011] SADC 64
[4] [2008] SADC 122
[5] [2011] McEwan SJ, MCTAN-10-803
Further, there are three decisions of single Judges of the Supreme Court of South Australia which are inconsistent with R v S, although it is not clear whether their authors had that case referred to them. (See Senior v Police[6], Ardill v Police[7] and Tidswell v Police[8])
[6] [2005] SASC 88
[7] [2005] SASC 450
[8] BC9804255
The decision of R v Payne[9], a decision of Underwood J of the Supreme Court of Tasmania, also appears inconsistent with R v S.
[9] BC8500019
The decision in R v S leaves a number of unanswered questions. Is the criterion for holding that an occupant of the vehicle is not a member of the public, that he be particeps criminis with the driver in the strict legal sense? Is it enough that the occupants merely consent to the driver’s activity rather than that they be particeps criminis in the strict legal sense? How does that fit in with the principle that persons cannot consent to serious assaults and serious bodily harm to themselves?
What are the principles that apply in relation to drunk occupants and juvenile occupants of the car? Is it necessary that they make informed decisions? Do the occupants have to know all the relevant facts that make the driving dangerous? Would this require knowledge that a vehicle they were in was approaching a particular intersection or a particular corner or would it be enough that they know the vehicle was being driven generally in a dangerous manner?

Can the occupants withdraw from the enterprise and become thereafter members of the public?
In the end I have determined that I can distinguish R v S. In that case there was an agreed fact that no person, other than the occupants of the car, was endangered.
It was made clear in R v S that if a member of the public outside of the car was endangered then it was not to the point that the person that suffered injury or death was an occupant of the car not being a member of the public.
This is consistent with the legislation in South Australia which, while requiring the driving to be “in a manner dangerous to the public” (See 19A(1)) requires only that the death be caused to “another”. (See 19A(1)(b))
The question then is whether the driving at the time of the accident was dangerous to the public in the sense of the public who were or may have been in the vicinity of the driving.
In my view the driving was at an excessive speed when taking the corner on which the accident occurred. The basis for my finding that the speed was excessive is firstly the evidence of McGrath who heard the rapid acceleration which evidence I accept. Secondly there is the evidence of some of the occupants of the car who spoke of the speed of the vehicle, in particular Gladwell, McCready and Yates. Thirdly there is the evidence of the speed of the vehicle at the time the tyre marks commenced and the fact that it was under deceleration thereafter.
The evidence of the police expert is that his estimate of the speed was a minimum speed and made on the assumption that there was no braking input. The observation of striations indicates however that there was braking input.
By excessive speed I mean the speed was excessive for the degree of turn on the steering wheel.
To drive in these circumstances, especially after there had been a previous occasion when the vehicle had spun out on that particular corner and while the accused was subject to a blood alcohol reading in excess of 0.1 is creating a grave risk that the driver will lose control of the vehicle. It was a very simple task to take that left hand corner. The accused was familiar with it having been around it previously and the vehicle had been stationary, a short distance before the corner at the weighbridge.
If the driver were to lose control of the vehicle on that corner it would create a grave risk to other road users or pedestrians in the vicinity. I accept that there is no evidence that on this occasion there were any vehicles or pedestrians in the vicinity.
The authorities have made it clear, however, that the test is not that there were actual members of the public in the vicinity but rather that there was a potential for members of the public to be in the vicinity.
It has been urged upon me that in the early hours of the morning, in a small town like Yongala with a population of 30 to 40 people, no shops, hotel, clubs or any attraction of that nature, that I should find that there was no likelihood of any members of the public being in the vicinity.
I reject that notion. The town was used, according to the evidence, as part of the main route from the west of the country to the east of the country as semi trailers with trailers could not use the more direct route through Horrocks Pass from Port Augusta to Wilmington thence to Orroroo and Peterborough.
Moreover, I do not accept the proposition that the people of Yongala are less likely to go walking or driving about their town than people in the suburbs of Adelaide. It is true that there are less of them but we are dealing with a very restricted township area. Like many country towns in South Australia, Yongala is set out in a grid pattern with a main road and some streets at right angles to the main road with streets either side of the main road parallel to it.
The silos area is only about 200 metres east of the main road in the town. It is a vacant area cleared and surrounded by low trees and shrubs. It is not unlikely that occupants of the township would go walking in that area if they were desirous of going for a walk or driving in that area for something to do or as a means of getting from one part of the township to another.
Counsel for the defence points to evidence of witnesses boldly stating that no-one goes to that area except during grain season. I do not accept that those expressions are literally correct. I accept that there is no particular purpose for going to the area surrounding the silos in non-grain seasons but I do not accept that people may not walk there or indeed drive there and that they may possibly do so late at night.
There is no need for someone to be actually present and endangered. It is the potential for members of the public to be present and endangered that is sufficient for the driving to be dangerous[10].
[10] Lehmann v Police [2010] SASC 102
In my view the accused’s driving meets the test of dangerous driving to the public. The accused had had prior notice of the corner and prior involvement in an incident demonstrating in stark terms what happens if one travels too fast around the corner.
The accused had not come upon the corner fortuitously after a long drive. The corner was ahead of him when the occupants of the car all got back in near the weighbridge and when the accused took off rapidly. It must have been in his memory as the place where the vehicle had spun out of control at that time earlier time. It must have been known by him as a corner he must traverse in order to get to the main road back to Peterborough.
It is not asking a lot for a driver to successfully negotiate a shallow left hand bend in the circumstances. The fact that he was unable to do so, to such an extent that the vehicle rolled over, having collided with the culvert, was grossly irresponsible driving falling well short of the standard of good driving expected of motorists. It is more than an ordinary lapse of judgment. It is the sort of driving that would cause an onlooker to exclaim “That’s dangerous”.
I have considered whether the driving was merely a lapse of the high standard required of motorists such that it was more properly described as driving without due care. In my view the driving was much worse than that. It was the sort of driving that a person in the position of the accused would readily have recognised as being dangerous. It was grossly delinquent driving because the vehicle was permitted to slide sideways in circumstances where that could easily have been avoided. It was dangerous because the sideways slide was so uncontrollable due to the accused’s intoxication and cavalier attitude to his driving that the car slid against an immovable object namely the concrete culvert which was a considerable distance from the area of the roadway proper.
I find beyond reasonable doubt that the driving was dangerous.
Did the Dangerous Driving Cause the Death of the Deceased?
The essence of the dangerous driving was the failure to control the vehicle on a corner that was not very demanding especially considering the vehicle had been stopped a short distance prior to the corner when the occupants had alighted to urinate at the weighbridge.
It was the dangerous driving that caused the vehicle to slide sideways into the culvert and overturn in such a catastrophic manner and it was the overturning of the vehicle, in those circumstances, that cause the death of the deceased.
Accordingly, I am of the opinion beyond reasonable doubt that the death of the deceased was caused by the dangerous driving of the accused.
Circumstances of Aggravation
I find also beyond reasonable doubt that the offence was aggravated in that at the time of driving the accused had more than 0.08 gms of alcohol per 100 ml in his blood.
Ruling on No Case to Answer
At the end of the prosecution case, a submission was made that I should rule that there was no case to answer.
The basis for the submission was that it was asserted that on the authority of R v S, the occupants of the car, being part of an escapade to drive dangerously, were not members of the public and as no-one else was about in Yongala in the vicinity of the silos in the early hours of the morning then it follows that there was no evidence that the driving was dangerous to the public.
I ruled against the submission and indicated I would give my reasons when I gave my judgment.
I rejected the submission because, in my opinion, there was evidence which was capable of establishing the driving was in fact dangerous to the public because of the possibility of persons other than those in the car being endangered.
Far from this merely being evidence capable of establishing danger to members of the public other than the occupants of the car I have found that the evidence establishes beyond reasonable doubt that the driving was dangerous to members of the public outside of the motor vehicle.
Accordingly I found, at the case to answer stage, that putting the prosecution case at its highest, there was clearly a case to answer.
Verdict
I return a verdict of guilty of the aggravated offence.
Penalty
I will hear any evidence as to penalty.