R v Jones - [2012] SADC 131

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JONES
Criminal Trial by Judge Alone
[2012] SADC 131
Reasons for the Verdict of His Honour Judge Muscat
19 October 2012
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
Aggravated causing death by dangerous driving - vehicle veering off country road onto verge at night, before returning to road and rolling over - whether accused evading a kangaroo - high blood alcohol concentration of accused - whether dangerous driving.
Causation - whether victim interfered with steering of vehicle.
Verdict of guilty.
Criminal Law Consolidation Act 1935 s 19A(1), s 19B(3), referred to.
R v Kamleh (1990) 159 LSJS 268; R v Cornish (1988) 48 SASR 521; R v Dawood [2002] SASC 346; Royall v R (1972) 172 CLR 378; R v Ettles (1997) 27 MVR 265; R v Duryea (2008) 103 SASR 70; R v Pfeifer Unreported CCA Judgment No. 680 of 1990 delivered 11 December 1990; R v Harris (1990) 55 SASR 321; Edwards v R (1993) 178 CLR 193, considered.

R v JONES
[2012] SADC 131
The Charge

Jason Lee Jones is charged with causing the death of Bradley Brine on the 7^th day of May 2011 at Kapunda, by driving a motor vehicle in a manner which was dangerous to the public, contrary to section 19A (1) of the Criminal Law Consolidation Act 1935.
The offence is alleged to be aggravated by Mr Jones having a blood alcohol concentration of more than 0.08 grams in 100 millilitres of his blood.
Mr Jones has pleaded not guilty and elected for trial by judge alone.
Introduction
Sometime after 12.00 am on Saturday 7 May 2011, Mr Jones was driving his Mitsubishi Triton dual-cab utility south along the Eudunda to Kapunda road. His friend, Bradley Brine was seated in the front passenger seat. They were driving home to Elizabeth after visiting a friend at Eudunda.
The Eudunda to Kapunda road is a single lane highway. The area on either side of the road consists of either farm land or paddocks. It was a cool, dry night and the road was in good condition. As with all country roads there was no lighting along it. The speed limit along the road is zoned at 110 kph.
When they were approximately three kilometres north of the township of Kapunda the vehicle left the bitumen road and began to travel along the gravel verge or shoulder of the road. The vehicle was travelling at or about the speed limit at the time. The stretch of the road where this occurred is straight and slightly downhill for south bound traffic. The vehicle travelled along the verge for a distance of over 50 metres.
As the vehicle travelled along the verge it was steered sharply to the right and back onto the road. The vehicle has then commenced to rotate or yaw in a clockwise direction. It was still in a yaw as it travelled across the road heading west. By this time the vehicle was effectively out of control. The vehicle has then travelled across into the wrong lane for its direction of travel. The vehicle was then steered sharply to the left in an attempt to correct its line of travel. It has then begun to rotate in an anti-clockwise direction before rolling over and sliding along the surface of the road. The vehicle rolled several times before coming to rest on its roof on the verge of the north bound lane of the road.
Mr Brine suffered fatal head injuries during the crash and died in the vehicle.
At the time of the crash Mr Jones had a probable blood alcohol concentration of 0.18 grams in 100 millilitres of his blood.
The prosecution has not alleged that Mr Jones was exceeding the speed limit as he drove along the Eudunda to Kapunda road immediately before the crash.
There is no dispute that Mr Jones was the driver of the Mitsubishi Triton ute at the time of the crash or that Mr Brine sustained fatal head injuries during the crash.
Onus and Standard of Proof
Mr Jones is presumed innocent of the charge he faces. The prosecution bears the onus of proving the charge against him.
The prosecution must prove each and every ingredient or element of the offence of aggravated causing death by dangerous driving beyond a reasonable doubt before I can find Mr Jones guilty.
It is not sufficient for the prosecution to show a mere suspicion of guilt or that Mr Jones is probably guilty.
There is no onus on Mr Jones to prove anything in a criminal trial. He has put forward a defence but he is under no obligation to prove it. It remains for the prosecution to exclude, beyond a reasonable doubt, what Mr Jones has put forward.
Elements of the Offence
In order to make out the charge the prosecution must prove, beyond a reasonable doubt, the following matters:
First, that Mr Jones was the driver of the Mitsubishi Triton utility. This is an admitted fact and so is not in issue.[1]
[1] Exhibit P2 - Admitted Fact 1. The facts contained in Exhibit P2 are admitted facts pursuant to s34 of the Evidence Act 1929 (Transcript at 41) and so constitute sufficient proof of those facts without other evidence.
Secondly, that Mr Jones drove in a manner dangerous to the public. This element of the offence is in issue. Here the prosecution must prove beyond a reasonable doubt that the manner of Mr Jones’ driving of his Mitsubishi Triton ute was such a grave departure from the standard of care expected of a road user that it imposed a risk which any reasonable person, in the position of Mr Jones, would recognise as a real danger to the public beyond the ordinary risks of the road.
As King CJ explained in R v Kamleh:[2]
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 injuries 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 harm by dangerous driving is not committed but the driver is guilty of driving without due care or attention contrary to section 45 of the Road Traffic Act, a verdict of guilty of which offence is open to the jury by virtue of section 19b(2) of the Criminal Law Consolidation Act.
[2] (1990) 159 LSJS 268 at 269-70
Thirdly, that Bradley Brine died. Again this is an admitted fact.[3] There is no dispute that Mr Brine died as a result of serious head injuries suffered during the crash.
[3] Exhibit P2 - Admitted Fact 2.
Fourthly, that Mr Jones’ dangerous driving was a substantial cause of Mr Brine’s death.[4] This element is also in contention.
[4] R v Dawood [2002] SASC 346; Royall v R (1972) 172 CLR 378.
Fifthly, that at the time of the offence there was present in Mr Jones’ blood a concentration of 0.08 grams or more of alcohol in 100 millilitres of blood. If the offence is proved there is little issue in relation to this circumstance of aggravation. It is an admitted fact that a sample of Mr Jones’ blood, taken at 2.05 am on 7 May 2011, contained no less than 0.176 grams of alcohol in 100 millilitres of blood.[5] Mr Kostakis, a forensic scientist, testified, that based on this reading and assuming Mr Jones had stopped drinking alcohol at 11.45 pm, Mr Jones’ probable blood alcohol concentration at the time of the crash was 0.18 grams in 100 millilitres of blood. If Mr Jones had stopped drinking at 10.45 pm then his probable blood alcohol concentration at the time of the crash would likely have been higher. This expert evidence was unchallenged, save for defence counsel’s assertion that the effects of alcohol differs between individuals, which Mr Kotsakis accepted.
[5] Exhibit P2 - Admitted Fact 6.
If I am not satisfied beyond a reasonable doubt that Mr Jones is guilty of the offence of causing death by dangerous driving I will need to consider whether I am satisfied beyond a reasonable doubt that he has committed either of the alternative verdicts available to me under section 19B (3) of the Criminal Law Consolidation Act 1935, namely driving in a manner dangerous to the public and driving without due care.
If I am satisfied beyond a reasonable doubt that Mr Jones was driving in a manner dangerous to the public, but that his driving was not a substantial cause of Mr Brine’s death, I may find Mr Jones guilty of the offence of driving in a manner dangerous to the public.
If I am satisfied beyond a reasonable doubt that Mr Jones was driving without due care, then as one of the circumstances of aggravation of that offence is effectively admitted, namely that there was present in Mr Jones’ blood 0.08 grams or more of alcohol in 100 millilitres of blood, the offence of aggravated driving without due care has been established. A separate consideration arises as to whether that offence is further aggravated by it having caused the death of Mr Brine. This involves the same consideration of causation which is in issue in the primary charge.
Issues in Dispute
As already noted there is no dispute that Mr Jones was the driver of the Mitsubishi Triton ute at the time of the crash or that Mr Brine died as a result of severe head injuries sustained in the crash.
The issues in contention, therefore, are whether the evidence establishes that Mr Jones was driving in a manner dangerous to the public and if so whether such driving was a substantial cause of the death of Mr Brine. In answering these questions it is necessary to first determine why the vehicle left the road and travelled along the verge and secondly, what happened thereafter.
The prosecution alleged that through Mr Jones’ inability to properly drive his vehicle it has left the bitumen road and travelled along the verge for some distance. It contends that when Mr Jones realised he was travelling along the verge he attempted to correct the line of travel of his vehicle by steering it sharply to the right. This steering manoeuvre caused the vehicle to rotate in a clockwise direction as it moved from the verge back onto road before travelling across onto the incorrect side of the road. The prosecution contended that Mr Jones then attempted to further correct the vehicle by steering it sharply to the left. At this point Mr Jones lost total control of his vehicle and it was now rotating in an anti-clockwise direction. The vehicle has then overturned and rolled over several times along the incorrect side of the road before coming to a rest on its roof on the verge of the north bound lane.
The prosecution submitted that the evidence of Mr Jones’ high blood alcohol concentration at the time of the crash, together with the evidence of Mr Kostakis, a forensic scientist, regarding the significant impairment one would expect of Mr Jones’ driving faculties at such a high blood alcohol concentration, results in an inference that his ability to drive and manage his vehicle was severely impaired. It submitted that this is the explanation for what it contends was his dangerous driving in leaving the road and travelling along the verge.
Mr Jones said in evidence that as he was driving his vehicle along the Eudunda to Kapunda road towards Kapunda he saw a kangaroo come from the bushes on his right and onto the road. He said the kangaroo then hopped across the road and moved into his lane. He said that in order to avoid a possible collision with the kangaroo he deliberately steered his vehicle to the left off the bitumen road and onto the verge so as to drive past the kangaroo.
Mr Jones said that as he did this Mr Brine first nudged his hand and then moments later placed his hand over Mr Jones’ left hand on the steering wheel, causing Mr Jones to not be fully in control of the steering of his vehicle. Mr Jones was able, with some resistance from Mr Brine, to steer the vehicle off the verge and back onto the road. He said that by the time he was able to remove Mr Brine’s hand away from his hand, the vehicle was travelling across and onto the incorrect side of the road heading towards the scrub and bushes. He said that he attempted to steer the vehicle back in the right direction by turning the steering wheel to the left but the vehicle has then rolled.
If the prosecution has not excluded Mr Jones’ evidence of the cause of the crash beyond a reasonable doubt then Mr Jones has not committed the offence of causing death by dangerous driving or the alternative offence of driving in a manner dangerous to the public. This is because I am of the view that if Mr Jones was driving his vehicle, as he had intended to when avoiding the kangaroo, without any interference to the steering of the vehicle from Mr Brine, such driving would not amount to driving in a manner dangerous to the public, even allowing for Mr Jones’ high blood alcohol concentration at the time of the crash and the high speed at which the vehicle was travelling. In my view and for the reasons which I will outline later, I am not satisfied beyond a reasonable doubt that Mr Jones’ high blood alcohol concentration alone amounts to driving in a manner dangerous to the public.[6]
The Evidence
[6] R v Duryea (2008) 103 SASR 70 at [25]-[27].
Prosecution
On Friday morning 6 May 2011, Mr Jones telephoned his friend Darrian, who lived in the township of Eudunda, to see if he wanted to go fishing on the River Murray at Morgan. At the time Mr Jones made the telephone call Darrian was not at home so Mr Jones left a message asking that he call back. By the time Darrian returned his call Mr Jones considered that it was too late to go fishing. He said that Darrian invited him to his house at Eudunda to have some drinks. Not having seen Darrian for a number of months Mr Jones accepted the offer. At the time Mr Brine, who was a close friend of Mr Jones and was with Mr Jones that day, asked whether he could go with Mr Jones to Eudunda. Mr Jones agreed and the two of them travelled to Eudunda in Mr Jones’ Mitsubishi Triton dual-cab utility.
Just after Mr Jones and Mr Brine left Elizabeth to travel to Eudunda they stopped off at a bottle shop in Munno Para and purchased a carton of Tooheys Extra Dry stubbies of beer to take with them to Darrian’ s house. Mr Jones paid for the carton of beer using his credit card.
Mr Jones said he was not intending drinking any more than a few stubbies of beer at Darrian’s house. He said that he would have brought home any beer that was not consumed from the carton.
Mr Jones said that he only intended staying at Darrian’s house for a couple of hours or so. It was not his intention when they left Elizabeth to travel to Eudunda that he would stay overnight at Darrian’s house.
It is over an hour’s drive to Eudunda from Elizabeth, where both Mr Jones and Mr Brine lived. Mr Jones drove the entire way to Eudunda.
On the drive to Eudunda Mr Brine consumed some of the beer from the carton and was on his third beer when they were driving along the Kapunda to Eudunda road.
Mr Jones said that he and Mr Brine arrived at Darrian’s house at around 4 pm.
When they arrived at Darrian’s house Mr Brine took the carton of beer from the ute and Mr Jones and Mr Brine walked together to the front porch of the house where a group of people were socialising. Mr Brine placed the beer in the fridge inside the house but before doing so gave Mr Jones his first stubbie of beer to drink. Mr Jones said that he had not consumed any alcohol earlier that day or the night before.
Sue Chandler, who lived at the house at Eudunda with Darrian, said that there was a birthday celebration at the house for the son of one of her housemates and Mr Jones and Mr Brine had been invited. She remembered that Mr Jones consumed about three stubbies of beer from the time he arrived, which she thought was about 3.30 pm, to when she had to leave for work at 5.30 pm. She recalled that Mr Jones and Mr Brine were drinking beer from a carton which they brought with them to the house. She returned home from work at about 8.30 pm, by which time the others at the house had moved from the front porch and were gathered around a bonfire along the driveway. Thereafter she began drinking scotch and had consumed about six or seven glasses to the time Mr Jones and Mr Brine decided to drive home later that night. She remembered Mr Jones having consumed another three stubbies of beer after she returned home from work.
Ms Chandler said that at about 11.45 pm Mr Jones and Mr Brine decided to drive home. She made an offer that they could stay the night however, they decided to leave. She believed that they left at the instigation of Mr Brine as he was in a lot of pain from a sore testicle and wasn’t feeling well.
She said that she walked to the ute with Mr Jones and Mr Brine. She said Mr Jones did not appear drunk but Mr Brine appeared to be very tired. She said that she suspected Mr Jones to have not been far off the “drink driving limit”. However, she described herself at this time of the night, as being quite drunk from the scotch she had been drinking.
Mr Jones said in evidence that he was drinking stubbies of beer at the rate of one every 45 minutes to an hour. He claimed that he only consumed seven stubbies of beer and that once the beer from the carton had run out Darian gave him a glass of scotch[7] mixed with coke or pepsi which he said tasted strong. He said he didn’t like drinking scotch so was only sipping it over a period of time until he stopped drinking altogether. Mr Jones said he consumed his last stubbie of beer sometime between 9.00 pm to 9.30 pm.
[7] Mr Jones said in evidence it was a "cougar" glass, which I take as meaning a tumbler or whiskey glass. Mr Jones said the glass was full.
Mr Jones was adamant that all he had to drink was the seven stubbies of beer and the glass of scotch from the moment he first arrived at the house at around 4 pm to when he stopped drinking the scotch some 45 minutes or so before he and Mr Brine left to drive home. By reference to the time of the crash near Kapunda at about 12.35 am this would mean that Mr Jones stopped drinking alcohol at about 11.25 pm.[8]
[8] Mr Jones accepted that it takes approximately 25-30 minutes to travel between Eudunda and Kapunda, travelling at the speed limit (see Transcript at 203).
Given what he remembered he had to drink he couldn’t understand why his blood alcohol concentration was as high as 0.176 % at 2.05 am, over two and a half hours after he had stopped drinking.
Mr Jones said that during the evening there was an incident between Darrian and Mr Brine, when Darrian struck Mr Brine on the testicles. He said that Darrian didn’t know that Mr Brine was already suffering from a sore testicle. This incident between the two caused Mr Brine’s mood to change. Mr Jones said that Mr Brine became very angry toward Darrian and kept saying that he wanted to go home. At one point Mr Brine asked Mr Jones for the keys to the ute so that he could drive home. Mr Jones told Mr Brine that they couldn’t leave at that time because they had been drinking and he, that is Mr Jones, still had a beer that he was drinking from. Mr Jones said he was attempting to convince Mr Brine to stay because he didn’t want them to leave on a bad note. He said that the incident between Darrian and Mr Brine occurred about two to two and a half hours before they eventually left Eudunda to drive home. Mr Jones said that Darrian apologised to Mr Brine, telling Mr Brine that he wasn’t aware that he already had a sore testicle. Later in the night Darrian gave Mr Brine a pain killer as Mr Brine was in obvious pain but it appeared to have little effect in relieving Mr Brine’s pain.

When the alcohol ran out Mr Jones said that Darrian left the bonfire and went inside the house saying that he was going to bed. Mr Jones responded to this by saying to Darrian: “That’s pretty weak. You invited us down here and just decide because you got no more alcohol you’re going to bed.”[9] Mr Jones said that he and Mr Brine then decided to leave because Mr Brine was in a lot of pain and still agitated from being hit in the testicle by Darrian earlier in the night.
[9] Transcript at 170.
Mr Jones said that when he and Mr Brine left Eudunda to drive home he did not feel affected by the alcohol he had consumed.
He said that as they were nearing Kapunda a kangaroo hopped out from the right hand side of the road. He made a decision to drive off the left hand side of the road and onto the verge in order to avoid the kangaroo. He said that as he did this Mr Brine nudged his hand, causing it to move downwards on the steering wheel. Mr Jones said that he was able to quickly move his hand back up the steering wheel to the position it was before the nudge. Mr Jones said Mr Brine then took hold of his hand and the steering wheel. He said this was preventing him from steering the vehicle to the right and back onto the bitumen. Mr Jones said he eventually managed to steer the vehicle back onto the road. The vehicle was now sliding and heading across to the incorrect side of the road. Mr Jones said that Mr Brine still had hold of his hand and the steering wheel until Mr Jones was eventually able to remove Mr Brine’s hand from the steering wheel. Mr Jones said that he then sharply steered the vehicle to the left in an attempt to straighten it and prevent it from heading off the road and into the scrub. He said that all he could remember at this time was the vehicle travelling sideways. Mr Jones next remembers waking up inside the upturned vehicle. As the evidence of Mr Jones on this issue is important I will deal with it in more detail later in these reasons.
After the crash Mr Jones crawled out of the upturned vehicle. He said he felt pain along the right side of his body and that his head was bleeding. He saw the headlights of an approaching car and waved it down.
Mr and Mrs Schutze arrived at the scene not long after the crash occurred. Mr Schutze said that they had been at a friend’s house on the outskirts of Kapunda when around midnight, they heard what was obviously the sound of a vehicle crashing. He and his wife and some others drove to the scene and saw the Mitsubishi Triton ute upturned on the side of the Kapunda to Eudunda road. Mr Schutze looked inside the vehicle and observed Mr Brine strapped in the seatbelt in the front passenger seat. Mr Brine had very serious head injuries and was already deceased.
He observed Mr Jones walking around the upturned vehicle. He said that Mr Jones seemed quite erratic and that Mr Jones was very concerned about his friend. He noticed that Mr Jones’ speech was slurred. He could smell alcohol on Mr Jones’ breath. He heard Mr Jones repeat a number of times that he had swerved to avoid a kangaroo and that Mr Jones kept asking how his friend was. He agreed with defence counsel that Mr Jones appeared dazed and possibly in shock.
Mrs Schutze said that when they arrived at the crash scene Mr Jones was waving his arms about and appeared quite dishevelled and very anxious. As she approached Mr Jones she noticed that he had a small cut to the rear right side of his head which was bleeding. She obtained a first aid kit from her car and placed a bandage over his head to stop the bleeding. Mr Jones said “I don’t know where my mate is.” He kept repeating that he wasn’t speeding and went on to say that he was only doing 110 kph. He also repeated a number of times that he saw a kangaroo and then rolled. She said that Mr Jones told her that they were heading home to Elizabeth from a party at Eudunda.
She said that Mr Jones appeared intoxicated. He was unable to stand straight and was swaying. She could smell alcohol on his breath. She described his behaviour as quite erratic and she had to keep asking him to sit down in case he had other injuries. She was also trying to get him to relax but he kept pacing around. He appeared very wide eyed and wouldn’t sit calmly or follow instructions. She said that he would look blankly at her and then ask “How’s my mate?” He appeared anxious and concerned for his friend. She formed the view that he was quite agitated and he kept repeating things.
She asked him a series of questions to assess his level of cognition, including asking him for his name and about his friend. Upon specific questioning he said that there were no children in the car and that his children were at home. Mr Jones also said that his friend had separated from his partner and so Mr Jones thought he would take him to a party.
The statement of Senior Constable Stuart Davies was tendered by consent.[10] I was invited to treat his statement as the evidence he would have given had he been called as a witness.
[10] Exhibit P1.
Senior Constable Davies was on duty when he received a call at 12.35 am from Police Communications to attend the scene of a single vehicle rollover on the Kapunda to Eudunda road. He spoke with Mr Jones at the scene. Mr Jones admitted to being the driver of the vehicle at the time of the crash. When he asked Mr Jones how the crash happened he answered: “I swerved to miss a kangaroo.” No further questions were asked of Mr Jones by Senior Constable Davies.
Mr Jones’ Mitsubishi Triton ute was examined by Christopher Graham, the police mechanic. The Triton ute was a four wheel drive vehicle. Whilst it was not equipped with an ABS braking system it was fitted with power assisted steering. A bull bar was attached to the front of the ute. Both of the rear drum brakes were in poor condition. This would have caused the vehicle to pull to the left upon braking. Apart from this the vehicle was in otherwise good condition before the crash. It was not suggested that the condition of the rear brakes in any way contributed to the crash.
Chris Kostakis, the principal forensic scientist in the toxicology section of the Forensic Science Centre, gave evidence of a count back of Mr Jones’ blood alcohol concentration to the time of the crash and also the effects of alcohol on a person’s driving performance.
In providing his opinion as to Mr Jones’ likely blood alcohol concentration at the time of the crash Mr Kostakis made the following assumptions of fact:
·That the crash occurred at about 12.35 am on 7 May 2011;
·That a sample of blood was taken from Mr Jones at 2.05 am on 7 May 2011;
·That upon analysis the blood sample revealed a blood alcohol concentration of 0.176% (0.176 grams of alcohol in 100 millilitres of blood);
·That there had been a steady rate of social drinking from 3.30 pm to 11.45 pm on 6 May 2011;
·That no alcohol was consumed by Mr Jones after the crash;
·That based on drinking finishing at 11.45 pm Mr Jones’ blood alcohol concentration was still rising. If drinking had ceased before then it is more likely that Mr Jones would have been in the post-absorption phase and therefore his blood alcohol concentration would be higher at the time of the crash.
On the above assumed facts it was Mr Kostakis’ opinion that Mr Jones’ probable blood alcohol concentration at the time of the crash was 0.18%.[11] On the assumption that Mr Jones had stopped drinking alcohol at 10.45 pm and that Mr Jones was eliminating alcohol from his system, his probable blood alcohol concentration at the time of the crash would be 0.20%.[12]
[11] It could have been as low as 0.15% or as high as 0.20%.
[12] It could have been as low at 0.18% or as high as 0.21%.
Mr Kostakis said that at blood alcohol concentrations between 0.16% to 0.30%, the general effects on a person would be that their responsiveness is delayed, clumsiness is observed, their speech would be obviously slurred, decision making would be affected and sedation becomes evident, depending on the environmental conditions.
He said that studies have revealed that at a blood alcohol concentration of 0.07% most of the complex tasks involved in driving a motor vehicle are impaired. As the blood alcohol concentration increases so does the level of driver impairment.
The driving faculties which are impaired at a reading of 0.07% include; visual skills, voluntary muscle movement, coordination (in particular hand-eye coordination), tracking skills, attention, choice, reaction times and decision making. At a blood alcohol concentration of 0.18% there would be significant impairment to these driving faculties.
Controlled tests on drivers affected by alcohol have revealed an increase in risk taking, increases in errors in steering and braking, side-by-side steering is affected, inadequate responses to emergency situations are observed and an increased number of crashes occur. At a blood alcohol concentration of 0.18% one would expect greater impairment to these faculties and a higher incidence of crashes.
Epidemiological studies have found that there is a major increase in the likelihood of a crash occurring when a blood alcohol concentration of a driver is greater than 0.05%. The higher the blood alcohol concentration, the markedly greater the likelihood of a crash occurring.
At a blood alcohol concentration of 0.18% one would expect there to be a significant impairment to driving ability including:
·A dramatic decline in concentration;
·A much greater likelihood of lateral movement - that is, the ability of a driver to maintain the vehicle in the correct lane of travel is decreased;
·Decision making would be poor;
·Impairment to a person’s perception of danger;
·Reaction times will be much longer; and
·The likelihood of a crash occurring is markedly increased.
Mr Kostakis accepted that in persons with a high tolerance to alcohol one would expect to see these behavioural changes at higher blood alcohol concentrations. I did not understand Mr Jones to be suggesting in his evidence that he had a particularly high tolerance to alcohol. Indeed, what he described of his drinking pattern, over recent years was of moderate drinking, although he admitted he had a drinking problem over 10 years ago.[13]
[13] I have not reasoned from his earlier drinking problem that he is the sort of person who has a tendency to drink to excess and drive.
Brevet Sergeant Bakker and Senior Sergeant Kuchenmeister, both very experienced police officers in accident reconstruction, gave evidence as to their interpretation of the physical evidence of the crash scene, including tyre marks and scrape and gauge marks left by the Mitsubishi Triton ute as it travelled along the gravel verge and back onto the road before rolling over. Their evidence was not the subject of serious challenge by Mr Jones.
Brevet Sergeant Bakker prepared a plan of the crash scene[14] and took a series of photographs.[15] I also viewed the scene of the crash and before doing so directed myself that the purpose of the view was for me to understand and follow the evidence and apply it but not to replace the evidence with what I observed on the view. The view of the scene clearly demonstrated the straight downhill section of the road where the crash occurred and gave a much clearer perception of the distances involved than one gains from the plans or the photographs alone.
[14] Exhibits P3 and P6.
[15] Exhibit P4.
Brevet Sergeant Bakker used a Total Survey Station to plot precise measurements of the various tyre marks, scrape and gauge marks and the upturned Mitsubishi Triton ute, from the first visible tyre mark north of where the Triton ute came to a rest. Using this data he was able to produce a scale plan.[16]
[16] Exhibit P3.
The Eudunda to Kapunda road is a sealed bitumen road travelling in a general north-south direction, with Eudunda to the north. The road was in good condition. On the night of the crash conditions were still, cool and dry, there being no cloud cover. Just north of the crash scene there is a crest in the road followed by a moderate downhill gradient[17] along a straight stretch of road where the crash occurred. The verge had a layer of loose gravel and stones over the top of a compacted dirt surface. There were no holes or deviations along the verge. The vegetation to the side of the verge was predominantly small bushes and grass. There was no lighting along the road but there were reflectors on white posts positioned at regular intervals along the verge. The portion of road where the crash occurred is zoned for travel at 110 kph.
[17] 2.8 degrees being the average gradient over the length of that stretch of road.
Point A on the plan and the photographs indicated the point at which the Triton ute began to roll. It was located approximately 300 metres south of Falland Road, which is located just north of the top of the crest in the road.
A number of tyre marks were observed, both on the gravel verge and on the bitumen road surface, and numbered T1 to T6 on the plan and the photographs.
Tyre marks are left on a surface when friction is caused between the tyre and the surface it is travelling along. Typically, a vehicle that is veering or turning will result in the tyre pulling the vehicle away from its normal forward motion and will generate a tyre mark.
T1 was the northern most tyre mark and was formed on the gravel verge for south bound traffic. T1 was 1.3 metres off the eastern edge of the bitumen when first observed. Neither Senior Sergeant Kuchenmeister nor Brevet Sergeant Bakker were able to determine how far back from the commencement of TI the vehicle would have first left the bitumen road surface and begun to travel along the verge. Logic dictates that it must have been at some point north of the first visible sign of T1 on the verge.
T1 was 50.7 metres in length and started 91 metres north of Point A. T1 was a rolling tyre mark, which in its initial stages was created by the front left or rear left tyres or both.[18] As this tyre mark progressed along the verge it was evident that it was created by a tyre that had started to turn, initially not very sharply but becoming sharper as it tracked along the verge and back onto the bitumen road surface. At this point it became clear that it was created by the rear left tyre. T1 ended approximately 4 metres onto the bitumen. The appearance of T1 when it was first observed on the verge indicated that it was initially travelling away from the bitumen in a gentle movement and then it appeared to move back onto the bitumen in a much sharper movement.
[18] It would have been created by both the front and rear left tyres if the rear left tyre was tracking directly over the front left tyre as the vehicle was moving along the verge.
T2 was a tyre mark on the gravel verge which was created as the vehicle was starting to slide and the tyre marks have begun to separate. It was created by the front left tyre of the Triton ute. At the point where T2 commenced the two left hand tyres (front and rear) have started to drift apart from one another. T2 was now tracking inside T1.
T3 was a tyre mark that also commenced on the verge and was created by the rear right tyre. T3 indicated that the vehicle was now entirely off the bitumen and travelling along the verge, with the right side of the vehicle being very close to the bitumen.
T2 and T3 indicated that the vehicle was beginning to rotate or yaw in a clockwise direction.
T4 was a tyre mark on the bitumen which commenced some 27.2 metres north of Point A and 1.8 metres east of the western edge of the bitumen. It was left by the rear right tyre of the Triton ute and was 17.8 metres in length. It terminated 0.9 metres from the western edge of the bitumen. It was consistent with the Triton ute having shot across the road from the south bound lane to the north bound lane and with the driver steering it sharply to the left in an attempt to correct the vehicle’s direction of travel.
T5 was consistent with being left by the front right tyre. It extended for 12.7 metres and terminated 5.7 metres north-east of Point A. By now the vehicle has clearly commenced to rotate in an anti-clockwise direction and was sliding along the road with the driver’s side of the vehicle leading.
T4 and T5 were consistent with the vehicle being steered sharply to its left, so much so that the vehicle was rotating around its centre of mass in an anti-clockwise direction, essentially yawing.
T6 was a small tyre mark found just south of point A and was most likely caused whilst the vehicle was rolling over and a tyre has connected with the bitumen surface and left a mark.
In the opinion of both Senior Sergeant Kuchenmeister and Brevet Sergeant Bakker the tyre mark evidence indicated that the vehicle has gently moved off the road at an angle of about 4º to the edge of the bitumen until there was some steering input which has left the tyre marks on the gravel surface of the verge. If the vehicle had moved off the road onto the verge in a controlled manner then gentle movement of the steering wheel towards the bitumen should return the vehicle to the road without any difficulties.
Senior Sergeant Kuchenmeister did not consider T1 to be consistent with an avoidance manoeuvre because the gravel on the verge was not pushed more to one side than the other (in this case to the east or to the left of the tyre mark). There was also no evidence of the vehicle braking or skidding along the verge, as “furrowing” of the tyre mark was not present along the gravel surface of the verge.
Senior Sergeant Kuchenmeister was of the opinion that the steering input to the right, once the vehicle was on the gravel surface of the verge, was quite harsh, which caused the vehicle to exceed its coefficient of friction on a gravel surface. In turn this has caused the vehicle to rotate or yaw in a clockwise direction around its centre of mass.
When the vehicle has returned to the bitumen it was at a 22º angle to the edge of the bitumen. This was a sharp enough turn to cause the vehicle to lose control.
In the opinion of both Senior Sergeant Kuchenmeister and Brevet Sergeant Bakker the vehicle was effectively out of control the moment the front and rear tyres began to separate on the verge, which was at the commencement of T2. Senior Sergeant Kuchenmeister stated that only a very skilled driver, through a combination of steering and braking manoeuvres (known as drifting) could potentially have regained control of the vehicle at this point.
In the opinion of each of them the tyre mark evidence indicated that the vehicle has then travelled west across the south bound lane onto the north bound lane, where there has been aggressive steering input from the driver to the left in an attempt to turn the vehicle back towards the south. At this point the rear of the vehicle has commenced to rotate in an anti-clockwise direction. At the point before T4 and T5 terminate and the scrape marks commence the vehicle was pointing back in a south-easterly direction on about a 27º angle to the road.
The scrape and gauge marks south of Point A are consistent with the vehicle overturning and rolling along the northern carriageway of the road. The vehicle would have rolled several times and slid along the road before coming to a rest on its roof. The vehicle sustained severe damage, as is evident from the photographs.
Brevet Sergeant Bakker said that when the vehicle first moved from the bitumen onto the gravel verge one would expect there to have been a change in the feel of the handling of vehicle. There would likely have been noise generated from rocks being thrown up and hitting the underside of the vehicle.
Senior Sergeant Kuchenmeister said there was no evidence that the vehicle was braking, either prior to the commencement of T1 or at any other time before the vehicle began to roll over.

Senior Sergeant Kuchenmeister calculated the speed of the vehicle at the point it began to roll over as approximately 105 kph.
He said that a vehicle travelling at 110 kph traverses a distance of 30.56 metres per second. At 100 kph it traverses a distance of 27.8 metres per second. The distance from the start of T1 to Point A (when the vehicle first began to roll over) was 91 metres. It would take 2.98 seconds to traverse that distance travelling at 110 kph and 3.28 seconds if travelling at 100 kph.
Brevet Sergeant Baker produced another copy of P3, this time with the image of a motor vehicle superimposed over tyre marks T1-T5, to give an indication of the movement and direction of the vehicle as it tracked along the gravel and back across the road.
Defence
Mr Jones gave evidence in his defence of the charge. He was under no obligation to do so. His evidence is not to be undervalued simply because he is an accused person. In assessing his evidence, as to his credibility and reliability, I do so as I would assess the evidence of any other witness.
By giving evidence Mr Jones does not assume any onus of proof. He does not have to prove his innocence. As I have said earlier, the onus is solely upon the prosecution throughout to prove the charge against Mr Jones beyond a reasonable doubt. As I discuss later in these reasons, if the prosecution has failed to exclude Mr Jones’ evidence of how the crash occurred beyond a reasonable doubt then he is to be found not guilty of the primary charge and the alternative offence of driving in a manner dangerous to the public.
Even if I were to reject his evidence, it would not follow that I would find him guilty of the charge. I can only do so, if taking into account the whole of the evidence, I am satisfied that the prosecution has proved each and every element of the charge beyond a reasonable doubt.
I have already detailed some of Mr Jones’ evidence insofar as it related to the arrangements to travel to Darrian’s house at Eudunda with Mr Brine on Friday 6 May 2011.
I have also detailed what he said in his evidence as to the amount of alcohol he consumed after arriving at Eudunda and how he was feeling when he and Mr Brine left to drive home that night.
Mr Jones said in evidence that as they were driving home Mr Brine was becoming “heated” over the incident involving Darrian earlier in the night. Mr Jones had his mobile phone playing music through the vehicle’s stereo system. He said he was driving close to the left hand side of the road, which is his practice when driving along country roads at night. He said they had not passed any other vehicles along the road from the time they left Eudunda until the crash.
Mr Jones said that he had his lights on high beam but the spot lights, which were fitted to the front of his vehicle, were not on. He remembered looking at his speedometer not long before the crash and noticed that he was travelling between 105 kph to 107 kph.
Mr Jones said that as he was driving along a straight downhill section of the road not far from the township of Kapunda, he saw a kangaroo move from the right hand side of the road heading towards his vehicle. He said that when he saw the kangaroo he made a decision to veer his vehicle to the left and onto the verge to give himself room in order to avoid the kangaroo. He drove the vehicle off the road with the left hand wheels on the verge. Once he drove onto the verge he thought the kangaroo kept going down the road or that it could have gone back in the opposite direction. He said he did not apply his brakes when he saw the kangaroo or while driving his vehicle off the road and onto the verge, but thought that he may have taken his foot off the accelerator. Whilst his vehicle was fitted with a bull bar it did not cross his mind to simply drive straight ahead and through the kangaroo if it moved into the path of his vehicle.[19]
[19] I do not consider that his failure to utilise the bull bar attached to his vehicle tells against him. It is difficult to determine how one would react if faced with the situation which Mr Jones said confronted him.
Mr Jones said that as he was about to drive the left side of his vehicle off the road he felt a nudge to his left hand on the steering wheel. He assumed it was caused by Mr Brine’s hand. The nudge caused his left hand to slip down along the steering wheel but not off it. He said he was able to quickly move his hand back up the steering wheel to the position it had been before it was nudged.
Mr Jones said that as he moved his hand back up on the steering wheel he noticed out of the corner of his eye Mr Brine take hold of the steering wheel with his right hand over Mr Jones’ left hand. Mr Brine now had hold of the steering wheel and Mr Jones’ left hand, which was also on the steering wheel.
Mr Jones said that whilst this was happening he was trying to steer the vehicle back onto the lane. He could feel Mr Brine moving the steering wheel. He described this in evidence as if he was fighting for the steering wheel with Mr Brine.[20] He said he told Mr Brine to “Let go” before pulling Mr Brine’s hand off the steering wheel by which time he could feel the vehicle was moving sideways. The vehicle was now travelling across to the opposite side of the road and heading towards the scrub and bushes. He said that he tried to bring the vehicle back under control by turning the steering wheel in the opposite direction but only remembers the vehicle moving sideways. The next thing he remembered was waking up in his vehicle and undoing his seatbelt before crawling out.
[20] Transcript at 220.
Once he was out of the vehicle he could see the headlights of an oncoming car and waved it down. He agreed that he spoke with Mrs and Mrs Schutze and Senior Constable Davies at the scene and told them that the accident occurred while he was attempting to avoid a kangaroo. He said he didn’t mention to Mr or Mrs Schutze that Mr Brine had taken hold of his hand on the steering wheel because he was simply responding to their questions. He explained that he didn’t think to mention Mr Brine because, as far as he was concerned, the accident occurred while he was trying to avoid a kangaroo.
When he was cross-examined he said that when he first saw the kangaroo it was about 10 metres ahead of his vehicle.[21] It was moving diagonally towards his vehicle but was still on the other side of the road.
[21] Mr Jones indicated the distance from the witness box to slightly beyond the back wall of the jury box which was agreed to be a distance of approximately 10 metres (see Transcript at 184-185).
When the kangaroo hopped over into his lane by crossing over the double white lines in the centre of the road[22] he decided to drive partly off the bitumen and onto the gravel verge to avoid it. He said the kangaroo was about 6.25 metres[23] from his vehicle when he began to drive the left side of his vehicle off the bitumen and onto the verge.
[22] Mr Jones said in evidence that the kangaroo had crossed over the double white lines in the centre of the road and was about half a metre into his lane when it stopped (see Transcript at 188).
[23] Again, Mr Jones indicated the distance from his position in the witness box to the start of the jury box which was agreed as being approximately 6.25 metres (see Transcript at 186).
He accepted that he did not apply the brakes when he first saw the kangaroo but said that he took his foot off the accelerator as soon as it began to hop across the road.
He also accepted that at some point his vehicle could have been travelling fully off the bitumen and along the verge. He said it was never his intention to drive his vehicle fully off the bitumen. He said the only reason his vehicle would have been fully on the verge was because Mr Brine had hold of the steering wheel preventing him from straightening the direction of travel of the vehicle.
He said he did not brake because he was intending to travel along the gravel surface of the verge. He said at no stage did he consider that braking would have been the best option to avoid the kangaroo. He said that he did not consider it unsafe to drive his vehicle onto the verge at 107 kph to avoid a kangaroo in the manner in which he had intended to drive.
Mr Jones said that as he began to steer his vehicle to the left in order to drive along the verge to avoid the kangaroo, he felt a nudge to his left hand from Mr Brine. Whilst the nudge caused his left hand to move down the steering wheel he was able to move it back into position straight away and it had no effect on the way he steered the vehicle along the verge as he was driving off the road. By the time of the nudge he had not yet passed the kangaroo, even though he was travelling at 105 kph or so. He was able to return his hand back to the position it was in before the nudge and in doing so drove past the kangaroo.
It was after he moved his hand back into the correct position on the steering wheel that Mr Brine grabbed hold of the steering wheel and his hand. He said that at this stage his vehicle was still travelling half on the verge and was starting to come back onto the road. The only reason his vehicle ended up fully on the verge was because Mr Brine had taken hold of his hand and the steering wheel preventing him from straightening it up. Mr Jones said that Mr Brine had hold of the steering wheel and his hand from some point while travelling along the gravel verge until he was able to remove it when the vehicle was travelling across the road and heading towards the scrub on the opposite side of the road.
While Mr Brine had hold of the steering wheel he was unable to move his hand to straighten the line of travel of the vehicle. He said that by the time he was able to remove Mr Brine’s hand the vehicle was already veering sideways and out of control.
Mr Jones reiterated that it was not his intention to have stayed the night at Darrian’s house, although Darrian did offer that he and Mr Brine could stay the night if they became too drunk. However, when he noticed that there was no lounge room in the house and nowhere for them to sleep, he told Darrian that if they did drink too much he and Mr Brine would sleep in the Triton ute.
He was adamant that he only consumed seven stubbies of beer and a glass of scotch the entire afternoon and into the night. He said that he didn’t think he had consumed too much alcohol to drive home.
He said that he and Mr Brine purchased a carton of beer to take with them to Eudunda, even though he was only intending on staying a couple of hours and having a few drinks at Darrian’s house. He accepted that he didn’t buy a six-pack of beer but instead bought a carton to take up to Eudunda. He said that he would have brought home any beer remaining in the carton.
He denied that he knew after the crash that he was too drunk to be driving that night. He said that he believed that he was below the drink driving limit when he left Eudunda to drive home to Elizabeth. He denied making up a story about swerving to avoid a kangaroo because he knew that he was too drunk to drive and needed to put forward an excuse for the crash. He also denied making up his evidence about Mr Brine nudging his hand and then taking hold of his hand and the steering wheel as an attempt to avoid responsibility for the crash.
He denied that he was struggling to concentrate while driving home because he had been drinking or, that he wasn’t paying attention while driving and drifted off the road and when he realised that he was off the road he panicked and attempted to steer his vehicle back onto the road.
Mr Jones said that he wasn’t feeling tired when he decided to leave Eudunda to drive home nor while driving along the Eudunda to Kapunda road or in the moments before steering his vehicle off the road and onto the verge to avoid the kangaroo. He denied that he fell asleep at the wheel and awoke to find himself travelling along the verge. He said that he was fully awake from the moment he left Darrian’s house at Eudunda until the crash occurred.
Mr Jones denied that Mr Brine may have nudged his hand or took hold of the steering wheel because, through inattention, he had allowed his vehicle to drift off the road. Mr Jones denied that Mr Brine was attempting to steer the vehicle back onto the road because he had drifted off the road through inattention rather than through avoiding a kangaroo.
Prosecution Address
The prosecution submitted that Mr Jones did not swerve his vehicle to avoid a kangaroo, nor did Mr Brine nudge Mr Jones’ hand or take hold of the steering wheel and his hand thus preventing Mr Jones from effectively steering the vehicle.
The prosecution submitted the tyre mark evidence establishes that Mr Jones has veered off the road at an angle of about 4º, which Brevet Sergeant Bakker described as the angle one would expect of a driver who was about to pull over to the side of the road. It was submitted that this, of itself, was a dangerous manoeuvre, given Mr Jones’ high blood alcohol concentration and taking into account that he was travelling at a speed of 105 kph to 107 kph on a country road at night.
The prosecution submitted that Mr Jones veered off the road, not due to a deliberate manoeuvre on his part to avoid a kangaroo which had crossed over onto the road, but due to a mistake on his part through his inability to keep his vehicle within its lane of travel.
The prosecution contended that Mr Jones’ explanation for his high speed, yet gradual swerve, to avoid a kangaroo is simply unacceptable and a physical impossibility on the evidence. The prosecution referred to Mr Jones’ evidence that he first saw the kangaroo at a distance of approximately 10 metres from his vehicle. Even allowing for some mistake in his perception of distances, the prosecution submitted that commonsense dictates that a vehicle could not move in such a way over such a short distance travelling at high speed. It submitted that a sober person would not have been able to have reacted in what must have been a blink of the eye to the danger of a kangaroo on the road, let alone someone with a blood alcohol concentration as high as Mr Jones’.
It submitted the explanation for the sharp steering to the right suggested a panicked reaction and an overcorrection from Mr Jones to the situation he found himself in. It contended that the timing substantiates this submission. The sharp steering would have occurred only a moment after the vehicle has crossed over onto the bumpy noisy gravel verge which, if a driver was inattentive or distracted, would shake them back to reality and cause such a panicked and unfortunate reaction.
The prosecution referred to the evidence of Mr Kostakis, as to the impairing effects of alcohol on driving ability at a blood alcohol concentration of 0.18% as the complete explanation for why Mr Jones’ vehicle has veered off the road and his subsequent reactions.
The prosecution submitted that what Mr Jones said to Mr and Mrs Schutze and Senior Constable Davies at the scene about swerving to avoid a kangaroo was made up by him in an attempt to avoid responsibility for the crash. It submitted that Mr Jones has lied about the kangaroo because of a realisation that the truth would implicate him in the commission of a very serious offence. As will appear later in my reasons, I am not prepared to act on this submission in determining whether Mr Jones is guilty of the charge.
It was pointed out by the prosecution that Mr Jones made no mention to anyone that Mr Brine had taken hold of the steering wheel, when on his evidence that was the very reason why he was unable to properly steer the vehicle and the cause of the crash. The prosecution has submitted that the failure to mention Mr Brine’s actions as the cause of the crash affects his credibility as a witness.
The prosecution contends that Mr Jones has tailored his evidence to accommodate the evidence of the reconstruction of the crash. It was submitted that given the speed at which Mr Jones was driving there was simply no time for Mr Brine to do what Mr Jones said he did. At the speed at which Mr Jones was driving his vehicle it would have travelled a distance of about 30 metres in one second. This does not fit with his evidence of the distance the kangaroo was from his vehicle when he first saw it.
The only explanation, submits the prosecution, for the tyre mark evidence is that the vehicle has made one gradual and continual movement from the bitumen onto verge and this is only consistent in the circumstances with an inattentive drift off the road, followed by a panicked reaction to correct the line of travel of the vehicle, which in turn has led to the crash.
Defence Address
Defence counsel invited me to accept Mr Jones’ account of how the crash occurred as truthful and reliable.
It was conceded by counsel that Mr Jones must have consumed more alcohol than he remembered given his admitted high blood alcohol concentration. Counsel submitted that Mr Jones’ mistaken belief of how much he had to drink could be explained by the very large glass of scotch which Darrian had given Mr Jones that night. It was submitted that Mr Jones must not have realised the strength of the scotch in the glass.
Defence counsel relied upon the evidence of Ms Chandler who said that Mr Jones did not appear drunk when he left her house to drive home and submitted that this was consistent with Mr Jones’ own evidence of how he was feeling when he left Eudunda.
It was submitted that the high blood alcohol concentration in Mr Jones’ blood does not, of itself, constitute dangerous driving. Counsel referred to the remarks of White J in R v Duryea[24] on this issue. It was submitted that the evidence in this case fell short of proving beyond a reasonable doubt dangerous driving by intoxication alone. It was pointed out that there was no eyewitness evidence to suggest that Mr Jones was so much affected by alcohol as to be incapable of exercising effective control of his vehicle and accordingly that his manner of driving was dangerous to the public. It was further submitted that the general evidence of Mr Kostakis could not assist on this issue as the effects of alcohol vary from individual to individual.
[24] (2008) 103 SASR 70 at [25].
I accept these submissions. Mr and Mrs Schutze were the first people at the scene. They were in the best position to gauge Mr Jones’ level of intoxication at the time of the crash. Each noticed Mr Jones had slurred speech and they could smell alcohol on Mr Jones’ breath. Mrs Schutze went further and said that Mr Jones was unable to stand straight and was swaying. I have to bear in mind in considering this evidence that Mr Jones was just involved in a serious crash in which his friend had died. He was most likely in a state of shock and appeared dazed and anxious at the crash scene. He had also sustained a knock to his head which was bleeding. Further, Mr Jones said in evidence that the right hand side of his body was in pain following the crash and his feet were cut.
In my view the evidence of Mr and Mrs Schutze, whilst important, does not establish the high level of impairment required before a conclusion could be drawn beyond a reasonable doubt that Mr Jones was so intoxicated that he must have been driving dangerously. [25]
[25] R v Duryea (2008) 103 SASR 70 per White J at [25]; R v Pfeifer Unreported CCA Judgment No. 680 of 1990 delivered 11 December 1990.
There was nothing in the statement of Senior Constable Davies about any observations he may have made of Mr Jones’ level of intoxication.
I have considered the evidence of Ms Chandler on this issue and find that it is of little assistance to me. By her own admission at the time Mr Jones was leaving to drive home she was heavily intoxicated. Ms Chandler’s ability to reliably gauge the extent of Mr Jones’ intoxication at that critical time would have been extremely impaired.
It was submitted that Mr Jones’ evidence of how the crash occurred is a reasonable possibility and has not been disproved by the prosecution. It was submitted that Brevet Sergeant Bakker’s evidence of there being a gradual moving off the bitumen onto the gravel verge was consistent with a deliberate manoeuvre by Mr Jones to do so and is equally consistent with the interpretation of tyre marks T1-T3.

As to Mr Jones’ estimation of the distances at which he first spotted the kangaroo and when it crossed over into his lane, I was asked to keep in mind when considering whether Mr Jones could be expected to estimate distances with precision, first that it was at night and secondly, that Mr Jones was travelling at or near the speed limit of 110 kph. It was submitted that if I were to accept Mr Jones’ evidence as to the distances he claims he saw the kangaroo his evidence would not make any sense because too much must have occurred from the time he first spotted the kangaroo to steering the vehicle off the road and Mr Brine taking hold of the steering wheel.
On the unchallenged evidence of Senior Sergeant Kuchenmeister it would take somewhere between 2.98 to 3.25 seconds to travel the distance from T1 to Point A, if driving between 100 kph and 110 kph. Based on this, it was submitted that Mr Jones would have first seen the kangaroo some time before T1, which I accept must be so, and that this would have been some 8 seconds back from Point A. This time is calculated by counsel on the assumption that the distance at which Mr Jones first noticed the kangaroo was at least the same distance it took to travel from the start of T1 to Point A, if not greater. This would place Mr Jones’ vehicle at a distance of 90 metres or more from the kangaroo when he first noticed it.
I cannot accept this submission as it is based largely on speculation. Furthermore, it was not the evidence of Mr Jones as to the distances he claimed to have seen the kangaroo. Whilst I accept that Mr Jones may have seen the kangaroo at a distance greater than he has estimated in his evidence, I am not prepared to accept, on the state of the evidence, that it was as far back as defence counsel has submitted.
I accept the submission that when the vehicle first began to yaw at T2 it was out of control and could not be recovered.
It was submitted Mr Jones failed to mention to Mr and Mrs Schutze that Mr Brine had grabbed hold of the steering wheel because Mr Jones was most likely in shock and was simply responding to their questions. It was submitted that all Mr Jones could remember of the crash, at the time he was answering questions, was that he was avoiding a kangaroo. I was invited to reject the prosecution submission that Mr Jones had made up a story about a kangaroo to Mr and Mrs Schutze as it is based on the assumption that he had the presence of mind to make such a story up so soon after the crash and that he knew Mr Brine had died in the crash.
It was submitted that if I was satisfied beyond a reasonable doubt that by driving his vehicle off the road and onto the gravel verge Mr Jones was driving without due care, then whilst the aggravating circumstance of there being a blood alcohol concentration of more than 0.08% in Mr Jones’ blood is established on the evidence, it does not follow that the further circumstance of aggravation, being the death of Mr Brine, was a substantial cause of the driving because Mr Brine had taken hold of the steering wheel.
Analysis and Conclusions
As can be seen much of the prosecution evidence in this case was not really challenged.
In this case the undisputed evidence is that Mr Jones’s Mitsubishi Triton ute left the bitumen road and travelled along the gravel verge for some distance, before being sharply steered to the right in an attempt to drive it back onto the bitumen, at which point control of the vehicle was essentially lost and the subsequent crash was an inevitable consequence.
The principal issue to be determined is why Mr Jones’ Mitsubishi Triton ute left the bitumen road and travelled along the verge. What happened thereafter, whilst important to a consideration of whether the charge has been proved, is very much subsidiary to the principal issue in contention in the case.
Has the prosecution excluded beyond a reasonable doubt that Mr Jones did not deliberately drive his vehicle onto the verge to avoid a kangaroo? The reliability and credibility of Mr Jones as a witness is critical to an assessment of this issue, as is the evidence of the reconstruction of the crash, particularly the tyre marks.
It was submitted by defence counsel that Mr Jones was an honest and reliable witness and his evidence on this issue should be accepted as being at least a reasonable possibility.
Mr Jones was adamant in his evidence that he had only consumed seven stubbies of beer and the glass of scotch and no more. He said in his evidence that he had his last stubbie of beer sometime around 9.00 pm to 9.30 pm. This is inconsistent with what Ms Chandler observed him drinking after she returned home from work at about 8.30 pm. She said he had consumed another three stubbies of beer after that time. Her evidence about this was not challenged. He also said in evidence that he stopped drinking altogether about 45 minutes before he and Mr Brine left Eudunda to drive home. He said his last alcoholic drink was the glass of scotch which Darrian had given to him after the beer ran out. Mr Jones said he was only sipping the scotch because he didn’t enjoy drinking it.
Based on the evidence of Mr Jones and by reference to the approximate time of the crash occurring shortly before 12.35 am (it taking approximately 25 minutes or so to drive to the crash scene from Eudunda) it follows that Mr Jones would have stopped drinking at about 11.25 pm.
It is an admitted fact that Mr Jones had a blood alcohol concentration of 0.176% at 2.05 am on 7 May 2011, which is over two and a half hours after Mr Jones claimed he stopped drinking and some two hours before he drove from Eudunda and one and a half hours after the crash.
Mr Jones simply could not understand why his blood alcohol concentration at 2.05 am was as high as 0.176 %. At one point in his evidence he put it down to not having had anything to eat all day apart from a pie at about 10.30 am while still in Elizabeth. His own counsel had to suggest that Mr Jones had misjudged the potency of the glass of scotch he was sipping and that this might account for his surprise at such a high reading.
Mr Jones also said that Mr Brine was drunk when the incident between Darrian and Mr Brine took place. He said that he believed Mr Brine had more to drink than he did at Darrian’s house. This must be incorrect as it is an admitted fact that Mr Brine’s blood alcohol concentration at the time of the crash was 0.110%,[26] which is less than Mr Jones’s probable blood alcohol concentration at the same time, calculated by Mr Kostakis to be 0.18%.
[26] See Exhibit P2 - Admitted Fact 7.
Plainly, on any view, Mr Jones had a lot more alcohol to drink that day than he remembered when giving evidence, as his counsel freely acknowledged. At the very least this has the capacity to affect the reliability of his evidence generally.
Mr Jones also claimed that he did not feel affected by the obviously large amount of alcohol he had consumed and said that he didn’t think he was over the drink driving limit to drive home. I am simply unable to accept this based on the very high blood alcohol concentration in his blood. There was the unchallenged evidence from Mr Kostakis of the effects of alcohol on persons at the high blood alcohol concentration found in Mr Jones’ blood. Then there are the observations of Mr and Mrs Schutze of Mr Jones’ state of intoxication at the scene of the crash.
On this issue, as I have said earlier, I am not prepared to rely upon the evidence of Ms Chandler, who stated that Mr Jones did not appear to be drunk when he left Eudunda to drive home, although she suspected he would have just been over the drink driving limit. Ms Chandler said herself at that time of the night she was very drunk, having by then consumed a large amount of scotch. Her ability to accurately assess Mr Jones’ state of sobriety, in her drunken condition, must be seriously doubted. I am not prepared to accept her evidence as accurately reflecting Mr Jones’ state of sobriety at that time of the night. I otherwise found Ms Chandler to be a generally reliable witness in relation to her recollection of other events that night.
If it was Mr Jones’ original intention to only stay a couple of hours at Darrian’s house and have a few drinks after the plans to go fishing fell through, then it hardly explains why he and Mr Brine purchased a carton of beer to take up with them. A six-pack of beer would have sufficed in those circumstances. Clearly Mr Jones was intending on staying at lot longer than a couple of hours at Eudunda and he was going to drink a substantial amount of alcohol. That is why he purchased a carton of beer rather than a six-pack. Indeed, as he remarked to Mrs Schutze at the scene of crash, he and Mr Brine were returning home from a party at Eudunda. This is consistent with the evidence of Ms Chandler that there was a birthday celebration at her house that night for her housemate’s son. Mr Jones denied that there was such a celebration or party and maintained that he was only visiting Darrian, who he hadn’t seen for some time.
As I have said, these matters tell against Mr Jones’ reliability as a witness. They also impact upon his credibility as a witness.
The plain fact of the matter is that Mr Jones had a very high blood alcohol concentration which would have impaired his ability to drive his vehicle. Whether he knew so or not is not a relevant consideration to whether he was driving his vehicle in a manner dangerous to the public. The test as to the manner of driving upon a charge of this kind is an objective one. As King CJ stated in R v Cornish: [27]
The question is whether in the judgment of the jury the manner in which the accused has driven, viewed objectively, amounts to driving in a manner dangerous to the public. It follows from the objective fact that a driver’s driving skills have been impaired by the consumption of alcohol is a factor to be taken into account in assessing whether the manner of his driving is dangerous in the relevant sense. That is so whether or not the driver himself realised, or even ought to have realised, that his faculties had been or might have been affected by the liquor which he had consumed.
[27] R v Cornish (1988) 48 SASR 521 at 522-523. See also R v Kamleh (1990) 159 LSJS 268.
I find that his evidence about seeing a kangaroo and reacting to it by determining to drive along the gravel verge, to effectively give it a wide berth, was equally unconvincing.
Mr Jones did not apply the brakes and slow down as one would generally expect of a driver who sees a kangaroo on the road. There was no evidence of any sharp or late veering to avoid hitting a kangaroo as it hopped across the road.
On his evidence Mr Jones must have had plenty of time to see the kangaroo, observe its actions and then make a considered decision to gently veer onto the verge to avoid any danger, whilst travelling at a speed of between 105 kph and 107 kph, at night and with a blood alcohol concentration of 0.18%. In my view such a scenario as put to me by Mr Jones is not a reasonable possibility. If he did have such a period of time in which to react to the presence of the kangaroo, there remains a question as to why he didn’t slow down to avoid it instead of leaving the bitumen at full speed.
Whilst he promptly mentioned to Mr and Mrs Schutze that he had swerved to avoid a kangaroo, when one has regard to the tyre mark evidence and his own evidence about his manoeuvring his vehicle to avoid the kangaroo it becomes evident that his account should be rejected as a reasonable possibility.
The tyre marks on the gravel clearly indicate a gentle movement of the vehicle from the bitumen surface onto the verge. As Senior Sergeant Kuchenmeister agreed the tyre marks appeared to be consistent with a drifting off the bitumen surface of the road. Whilst this is not inconsistent with Mr Jones’ evidence of a deliberate manoeuvre to drive his vehicle onto the verge, when his evidence was scrutinised under cross-examination the obvious flaws in his account were exposed.
Mr Jones’ evidence of his inability to properly steer the vehicle after Mr Brine had taken hold of the steering wheel is inconsistent with the pattern of the tyre marks T1-T3, which reveal a gentle swerve followed by a sharp shift to the right as detailed by Senior Sergeant Kuchenmeister and Brevet Sergeant Bakker in their evidence. If Mr Jones’ account was a reasonable possibility then the tyre mark evidence on the verge would not reveal a gentle movement followed by a sharper turn, but rather a straighter direction of travel as Mr Brine is steering it away from the road until Mr Jones was able to steer it back onto the road.
Mr Jones said that he was travelling along a straight downhill section of the road with the lights of his vehicle on high beam when he first noticed a kangaroo emerge from the scrub on the right hand side of the road. He was travelling, on his own evidence, at a speed somewhere between 105 kph and 107 kph.
Incredibly, he said that the distance at which he first spotted the kangaroo was only 10 metres from his vehicle. He said that he was able to watch the kangaroo hop diagonally across the road towards his oncoming vehicle as his vehicle was travelling near the speed limit of 110 kph. It then hopped across the double white lines in the centre of the road and was standing about half a metre into his lane. The kangaroo was now just over 6 metres from his fast approaching vehicle, at which point he made the decision to gently drive his vehicle off the road onto the gravel surface in an effort to avoid it.
At the speed at which he was driving, even allowing for a generous underestimation on his part of the distance at which he saw the kangaroo, his vehicle would have well and truly driven past the kangaroo before he had time to react. This explains why his counsel attempted to suggest that Mr Jones must have seen the kangaroo at a much greater distance than his evidence indicated. As I have said, even allowing for a generous underestimation of distances by Mr Jones,[28] the fact remains that he would have been travelling at a distance of between 30.56 metres and 27.8 metres per second, which leaves little time to react in the way he has suggested he did when he first saw the kangaroo.
[28] I accept it is notoriously difficult to estimate distances, particularly travelling at high speed at night and whilst inebriated.
I am satisfied beyond a reasonable doubt that the explanation for why Mr Jones’ distances were out by so much and the reason the tyre marks do not accord with an avoidance manoeuvre as one would have expected at the distances he put forward, is because there was no kangaroo to be seen in the first place and Mr Jones was having to come up with distances for the first time in the witness box. When put to the test under cross-examination on these important issues Mr Jones’ evidence lacked total credibility.
The tyre marks in the gravel clearly indicate a gradual drift along the verge, consistent with either inattention on the part of Mr Jones or simply a failure to maintain his vehicle in his lane of travel. I find that the tyre mark evidence establishes a gradual movement off the road onto the verge followed by an obvious harsh steering to the right caused through a panicked reaction to the realization that Mr Jones has drifted off the road and is now driving along the verge.
The explanation for this is to be found in the effects the large amount of alcohol he had consumed had on his driving ability[29] as detailed in the evidence of Mr Kostakis.
[29] R v Duryea (2008) 103 SASR 70 at [26]-[27].
I am satisfied beyond a reasonable doubt that Mr Jones was not avoiding a kangaroo as the explanation for why his vehicle was driving off the road and along the verge. I find that Mr Jones has constructed an account to fit in with the tyre mark evidence to explain the manner of his driving.
I do not accept as a reasonable possibility Mr Jones’ evidence that Mr Brine nudged his hand and then took hold of the steering wheel. Mr Jones made no mention of this to Mr and Mrs Schutze at the scene or to Senior Constable Davies. Whilst no doubt Mr Jones may have been in a state of shock at the time and so avoiding a kangaroo was at the forefront of his mind when speaking about the crash, on his account the accident was plainly caused by Mr Brine’s interference with the steering wheel, yet nothing is said about this to anyone at the time.
If Mr Brine did take hold of the steering, as Mr Jones has claimed, then one would have expected Mr Brine to steer the vehicle to the right so as to return it to the road from its position on the verge. Mr Jones said in evidence that Mr Brine was maintaining the direction of travel of the vehicle to the left as they were travelling along the verge and this is the explanation for why the vehicle moved entirely into the verge. Mr Jones said that he was fighting for the wheel with Mr Brine in order to get it back onto the road but he couldn’t do so because Mr Brine had hold of the steering wheel. Such a scenario as put by Mr Jones is illogical and defies the commonsense and natural reaction to such a situation, which would have been for Mr Brine to steer the vehicle to the right rather than maintain its direction to the left as Mr Jones has suggested.
Even if I were to accept as a reasonable possibility that Mr Brine did take hold of the steering wheel, I could not accept that this occurred just before the vehicle left the bitumen or in the moments immediately following the vehicle’s entry onto the gravel. Mr Brine would simply not have had time to react in that manner. If Mr Brine did grab the steering wheel, he would have done so once the vehicle was almost entirely, or entirely, off the road. By this time Mr Jones had already driven in a manner dangerous to the public.
Furthermore, even if Mr Brine had grabbed the steering wheel in the manner I have just described, I would still have found Mr Jones’ dangerous driving was a substantial cause of the death of Mr Brine. Mr Brine’s actions were in response to an emergency situation which was created by Mr Jones’ dangerous driving in drifting off the road and onto the verge for some distance. Mr Brine’s action in taking hold of the steering wheel was not an unreasonable response to this dangerous situation. I would not have found that there was a reasonable possibility that Mr Brine overreacted to the situation in a way which was disproportionate to the danger created by Mr Jones’ driving or that his conduct was not a natural consequence of that danger or that his response arose from a fear that was not well founded or reasonable, such that it was an intervening cause. [30] After all Mr Jones had allowed his vehicle to drift off the road at night and travel along the gravel verge at or near a speed limit of 110 kph. Commonsense dictates that such a reaction by a front seat passenger faced with a life threatening situation created by the driver would not be unreasonable.
[30] R v Dawood [2002] SASC 346; R v Ettles (1997) 27 MVR 265; Royall v R (1972) 172 CLR 378.
Whilst I have rejected Mr Jones’ evidence that there was a kangaroo which he claimed to be avoiding as the explanation for him driving onto the verge, I indicate that I have not reasoned guilt from what he said to Mr and Mrs Schutze and to Senior Constable Davies at the crash scene about there being a kangaroo.[31] There are many reasons why a person, in the situation of Mr Jones, might lie about the cause of a crash other than through a realisation that he was guilty of the serious charge he now faces, the most obvious explanations being through sheer panic or fear at the thought of what has just unfolded and what might have happened to his friend.
[31] R v Harris (1990) 55 SASR 321; Edwards v R (1993) 178 CLR 193.
What Mr Jones said to Mr and Mrs Schutze and to Senior Constable Davies about swerving to avoid a kangaroo has had no impact on my assessment of him as a witness, given that I found him to be an unconvincing witness and lacking credibility on a number of important issues, including the very issue involving the kangaroo, which was central to the trial. My rejection of his evidence that there was a kangaroo simply confirms that what he said about this at the scene was made up and no more need be said.

It does not follow that having rejected Mr Jones’ evidence he must be guilty of the charge of causing death by dangerous driving. I must still be satisfied by the evidence as a whole, that the prosecution has established the guilt of Mr Jones beyond a reasonable doubt.[32]
[32] R v Harris (1990) 55 SASR 321 at 323.
Based on the evidence, particularly the reconstruction of the crash scene, which was not challenged by Mr Jones, I am satisfied beyond a reasonable doubt of the following facts:
1.That sometime after midnight on 7 May 2011 Mr Jones was driving his Mitsubishi Triton ute south along the Eudunda to Kapunda road at or about the speed limit of 110 kph.
2.As Mr Jones was driving along a straight downhill section of the Eudunda to Kapunda road, just south of Kapunda, his vehicle drifted to the left, leaving the bitumen surface and began to travel along the eastern gravel verge of the road.
3.At some point when the vehicle was fully on the verge Mr Jones steered it sharply to the right in an attempt to correct the vehicle’s line of travel.
4.When he did so the vehicle began to rotate or yaw in a clockwise direction as it returned to the bitumen road.
5.By this point the vehicle was effectively out of control and the subsequent crash was inevitable.
6.The vehicle returned to the road and then crossed the road in a westerly direction and onto the incorrect side of the road that it was originally travelling.
7.As the vehicle travelled onto the incorrect side of the road Mr Jones attempted to correct its direction of travel by steering the vehicle sharply to the left.
8.The vehicle began to rotate, this time in an anti-clockwise direction.
9.The vehicle then rolled over several times before sliding south along the northern carriageway of the road.
10.The vehicle came to rest upon its roof and sustained substantial damage.
11.Mr Brine died as a result of serious head injuries incurred during the crash.
12.At the time of the crash Mr Jones had a probable blood alcohol concentration of 0.180%.
The explanation for Mr Jones’ vehicle drifting off the road and along the verge is due to the significant impairment to his driving faculties, particularly his ability to concentrate and maintain the vehicle within its lane, caused by his excessive drinking of alcohol before the crash.
I am satisfied beyond a reasonable doubt that Mr Jones’ manner of driving was dangerous to the public.[33] Mr Jones drove in a manner dangerous to the public when his vehicle left the bitumen and travelled some distance along the verge to a point where the vehicle was travelling entirely within the verge at a speed at or near 110 kph.
[33] R v Kamleh (1990) 159 LSJS 268.
I am satisfied beyond a reasonable doubt that Mr Jones’ dangerous driving was a substantial cause of the death of Mr Brine.
I am also satisfied beyond a reasonable doubt that at the time of the dangerous driving Mr Jones had more than 0.08 grams of alcohol in 100 millilitres of his blood.
Verdict
I find Mr Jones guilty of the offence of aggravated causing death by dangerous driving.