R v Jongewaard
[2009] SADC 90
•26 August 2009
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JONGEWAARD
Criminal Trial by Judge Alone
[2009] SADC 90
Reasons for the Verdict of His Honour Judge Chivell
26 August 2009
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - PROOF AND EVIDENCE
Accused charged with one count of aggravated causing serious harm by dangerous driving, and one count of leaving the scene of an accident after causing harm.
Trial by Judge sitting without a jury.
Elements of offences. Whether driving amounted to dangerous driving or driving without due care. Whether defence of genuine belief in s43(3) available.
Verdicts: Count 1 - not guilty, but guilty of aggravated driving without due care. Count 2 - guilty.
Criminal Law Consolidation Act, 1935 s19A(3), s19AB(2), s19B(3), s21; Juries Act, 1927 s7; Road Traffic Act, 1961 s43, s45, referred to.
R v Jaeschke [2007] SASC 321; R v Hoang (2002) 83 SASR 254, applied.
R v JONGEWAARD
[2009] SADC 90Introduction
The accused is charged with one count of aggravated causing serious harm by dangerous driving, contrary to s 19A(3) of the Criminal Law Consolidation Act 1935. The offence is alleged to have been aggravated because he had a blood alcohol concentration in excess of 0.08 grams in 100 millilitres of blood. Particulars of the offence alleged are:
Christopher Chad Jongewaard on the 10th day of February 2007 at Normanville, drove a motor vehicle in a manner which was dangerous to the public and thereby caused serious harm to Mathew David Rex.
The accused is also charged with one count of leaving the scene of an accident after causing harm, contrary to s 19AB(2) of the Criminal Law Consolidation Act 1935. Particulars of that offence are:
Christopher Chad Jongewaard on the 10th day of February 2007 at Normanville, drove a motor vehicle without due care or attention thereby causing serious harm to Mathew David Rex and failed to satisfy the statutory obligations of a driver of a vehicle in relation to the incident.
The accused entered pleas of “Not Guilty” to both counts. He elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act.
Brief facts
On Saturday 10 February 2007, Christopher Jongewaard and Mathew Rex were members of a group of 10 people, 5 males and 5 females, who had travelled down from Adelaide to the South Shores Resort, just south of Normanville. Mathew Rex was celebrating his 22nd birthday. They had rented a 3-storey building, to which I will refer as a villa, for the weekend.
Mr Jongewaard, a professional cyclist, had brought with him a road bike and a mountain-bike. He planned to train on them the following day. He conveyed them in his white VT Holden Commodore station sedan. It is an agreed fact that the vehicle was in good mechanical condition.
Mr Jongewaard was accompanied by his then-girlfriend Jacqueline Ewens. His friend Peter Raw rode down on his motorcycle.
Mr Rex was accompanied by his then-girlfriend Claire Perrin, his friends Caitlin Wells and Catherine Warner, and his younger brother Sam, then aged 19. Another friend, Daniel Tsiavlis, and his then-girlfriend, Claire Ewens, Jacqueline Ewens’ sister, were the other members of the group.
The group had arrived at the villa by mid-afternoon. The females went to the nearby beach for a short while, and most, if not all, of the males began drinking alcohol at that point. When the females came back, they all went down to the beach and played beach cricket. When they came back, some of them had a swim in the swimming pool at the resort.
Towards evening, some of the group began preparing dinner, while others including Mathew Rex, continued drinking on the balcony of the villa. Mathew Rex said that he has no memory of any of these events after this point. During dinner, all of the males and most of the females drank alcohol, either wine or beer or vodka and fruit juice.
After dinner, Mr Jongewaard drove Sam Rex into town to buy cigarettes. While they were away, and without Mr Jongewaard knowing about it, Mathew Rex took Mr Jongewaard’s mountain bike and went riding on it. Daniel Tsiavlis, concerned about Mr Rex’s level of intoxication, took the road bike and chased after him. Neither bike was equipped with lights or reflectors, and neither rider wore a helmet, or reflective or even light-coloured clothing.
Mathew Rex rode down the long driveway of the resort and on to Main South Road. Daniel Tsiavlis caught up to him and followed him north towards Normanville, remonstrating with him to stop. He eventually convinced Mr Rex to do a U-turn, and they proceeded to ride south again towards the entrance to the resort.
In the meantime, Mr Jongewaard had purchased the cigarettes, and was driving back towards the resort. At a point about 160 metres north of the driveway entrance, the front left-hand-side of Mr Jongewaard’s vehicle collided with Mr Rex, causing him very serious injuries. Daniel Tsiavlis was unharmed.
The collision occurred at about 9.18pm. Mr Jongewaard continued driving south, and in fact he overshot the driveway entrance. He did a U-turn and drove back north to the entrance, turned left and drove down the long driveway to the resort gate. The gate is opened by a keypad, and Mr Jongewaard did not have the code. He abandoned the car, climbed over the gate, and proceeded back to the villa.
In the meantime, Daniel Tsiavlis, who was carrying Mr Jongewaard’s mobile phone, rang his own mobile phone which was back at the villa. Claire Ewens answered it. Mr Tsiavlis told her what had happened. He said he thought Mathew Rex was dead. Jacqueline Ewens had first aid training. She and 3 of the other females gathered towels and blankets and prepared to drive to the scene.
As the females were leaving the villa, Mr Jongewaard arrived there. There was a brief exchange, and the females proceeded to the accident scene. Mr Jongewaard remained at the villa with Claire Perrin and Peter Raw, until the police arrived.
Back at the scene, Mr Tsiavlis had flagged down a passing car driven by Mr Ian Alderson. Mr Alderson and his 3 passengers alighted and rendered assistance. After some time police and ambulance and State Emergency Service personnel attended the scene. Mathew Rex was airlifted by helicopter to Flinders Medical Centre for treatment of his injuries.
The case for the Prosecution
Mr Rofe QC, counsel for the Director of Public Prosecutions put the prosecution case on Count 1 to me very clearly. In his address he said:
The prosecution case is that Mr Jongewaard was driving with a grossly defective lookout, probably contributed to by the level of intoxication, at a speed which was probably in excess of the speed limit of 80 km/h.
Alcohol
The factual situation here is similar to that in R v Jaeschke [2007] SASC 321. In that case, Doyle CJ said at [50]:
This is not a case in which the prosecution suggested that Mr Jaeschke was, because of alcohol, incapable of exercising effective control of his vehicle, and so driving in circumstances that were dangerous. The prosecution case was that the consumption and effect of alcohol might explain why Mr Jaeschke’s lookout was defective. The main issue for the jury, in this respect, was whether Mr Jaeschke’s lookout was defective, and so defective that he was driving in a manner dangerous to the public. The effects of alcohol were also of some relevance to the reliability of what Mr Jaeschke said to police on the night.
It was an agreed fact that a blood sample was taken from Christopher Jongewaard at 12.10am on Sunday 11 February 2007. This was later analysed at State Forensic Science and disclosed that there was a concentration of not less than 0.094 grams of alcohol in 100 millilitres of blood.
The evidence of Mr Robert Lokan, a forensic scientist with long experience in this area, was that at 9.18pm, the time of the collision, the best estimate of the concentration of alcohol in Mr Jongewaard’s blood was 0.13 grams of alcohol in 100 millilitres of blood, and that the concentration would not have been less than 0.10 grams of alcohol in 100 millilitres of blood.
Mr Lokan assumed a typical social drinking pattern, that Mr Jongewaard had consumed alcohol between about 4pm and 8.30pm that day, that no alcohol had been consumed after the accident, and that alcohol would have been absorbed into and eliminated from Mr Jongewaard’s blood at an average rate (T117-118). He agreed that elimination rates vary between individuals, and, will even vary for a particular individual from day to day. For those reasons, it is not possible to be precise about this evidence, and the opinions given are estimates. However, Mr Lokan gave evidence that subject to these qualifications, in his opinion, the minimum blood/alcohol concentration at 9.18pm was 0.10 grams of alcohol in 100 millilitres of blood. I accept that opinion.
The prosecution also called Professor Jason White, a pharmacologist who has conducted research into the relationship between alcohol and road accidents. Professor White gave evidence that, at levels over 0.05 grams of alcohol in 100 millilitres of blood, alcohol has demonstrated adverse effects on driving ability which increase as the concentration increases. He said:
They include a decreased ability to concentrate or attend to the road, and that’s particularly the case if there’s multiple aspects to the driving environment; for example, having to concentrate on other traffic, perhaps signs on the road, perhaps pedestrians. So the more complex the situation the more a person is affected by alcohol. People under the influence of alcohol also make more errors in operation of the vehicle. They might make errors in steering, in braking, in acceleration. They have less control over steering … The other major effect of alcohol is an increase in risk taking. This may be manifested in various ways. One obvious one is an increase in speed, so people frequently speed under the influence of alcohol, but it can be other aspects of driving where they show greater risk taking than they normally would. (T121-122)
On the basis outlined by the Chief Justice in Jaeschke’s case quoted above, I accept that the evidence of Mr Jongewaard’s alcohol consumption, and its likely effect, is relevant in that it might explain why, if it be so proved, Mr Jongewaard’s lookout was defective, and even why, if it be so proved, he was speeding.
Alcohol – Mathew Rex
It is also necessary to record that Mathew Rex was showing signs of severe intoxication at the time of the collision. Most of the witnesses observed that, in celebrating his birthday, he drank heavily during the afternoon. For example, Claire Perrin said that “particularly Mathew was quite bad” (T9). Jacqueline Ewens said that both Mathew and his brother seemed “quite intoxicated” (T21). Caitlin Wells described Mathew Rex as “quite drunk” (T40), and Daniel Tsiavlis described both Mathew and Sam Rex as “pretty intoxicated” when they were playing cricket (T78).
Jacqueline Ewens said she saw Sam Rex put something in Mathew Rex’s mouth, and then she saw Mathew Rex spit something out (T32). Sam Rex denied putting anything in his brother’s mouth (T57).
It is an agreed fact that a blood sample was taken from Mathew Rex at 1.30am on 11 February 2007. A subsequent analysis showed that the concentration of alcohol in his blood was not less than 0.60 grams per 100 millilitres. Mr Lokan’s evidence was that the blood/alcohol concentration was probably 0.11 at 9.18pm on 10 February 2007, and would not have been less than 0.04 grams per 100 millilitres.
It is further agreed that a sample taken from Mr Tsiavlis at 12.09am on 11 February showed a concentration of 0.51 grams per 100 millilitres, and that it was probably 0.08 grams per 100 millilitres at 9.18pm, and not less than 0.03 grams per 100 millilitres.
These figures are surprising since the clear consensus among the witnesses was that Mathew Rex was much more severely intoxicated than Daniel Tsiavlis.
Mathew Rex was displaying signs at dinner that suggested to some of the witnesses that he may have taken some other drug as well as alcohol. Claire Perrin said she suspected that because Mathew Rex appeared to be hallucinating at dinner, speaking of seeing “fairies” in the kitchen (T13). Jacqueline Ewens referred to him “struggling to coordinate himself”, his eyes were “rolling back in his head”, and he was “seeing fairies” (T22). Caitlin Wells said that Mathew Rex’s behaviour was “not consistent with alcohol” (T47). Kate Warner made similar observations (T70).
Professor White said that such behaviour could have been due to a combination of ecstasy and a large amount of alcohol (T146). This evidence may explain Mathew Rex’s bizarre behaviour that night.
Daniel Tsiavlis said that when he was speaking to Mathew Rex on the telephone, Mathew Rex, thinking he was Mr Jongewaard, was saying “I’m coming after you, I’m coming to get you”, “I’m following you” (T78).
Mr Tsiavlis described Mathew Rex as “incoherent” (T79). While they were riding on Main South Road, he said that Mathew Rex was “mumbling”, “Not making much sense” and “just enjoying himself” (T80). He said that when they were passed by cars when riding north towards Normanville, he called “cars coming” and Mathew Rex then rode single-file. Mr Tsiavlis described this as “standard procedure”. However, on the way back, Mathew Rex did not do this. Mr Tsiavlis said:
QWhat is the next thing you became aware of.
AI just kept on telling Matt to get off the road and that’s when I really noticed that he was just in gaga land, just incoherent, still mumbling. I think I told him several times until he got hit. I actually gave him enough room. I went to the very edge of the shoulder of the road, which is where the sand was meeting, and he was in no state to even understand what a car was, I suppose.
QWas it affecting his bike riding at all.
AYeah, most definitely.
QIn terms of his control and direction.
AHe’s not a mountain biker, but in bare feet with those pedals and those bars, he’s a road rider, so it’s probably the wrong bike for him to be riding anyway because, I mean, anyone else would have ridden just straight off the road, because you could have that with the tyres that were on the bike. He was just ride – if you know what I mean, pretty intoxicated. (T81)
On the basis of that evidence, I have no difficulty accepting that Mathew Rex was severely affected by alcohol and possibly a drug such as ecstasy as well, at the time of the collision. That conclusion explains why he was riding to the right, or west of the fog line, in a very dark area, without a helmet or shoes, without lights or reflectors, and wearing dark, non-reflective clothing.
Speed
There is no direct evidence of the speed of Mr Jongewaard’s vehicle at the time of the collision. Clearly, the level of damage to the mountain bike, and the extent of Mr Rex’s injuries suggest that the speed was substantial.
Sam Rex gave evidence that at one stage on Main South Road, he looked over at the speedometer and it was “vertical”, and “sort of about 120 kilometres per hour” (T54). I do not accept this evidence for several reasons:
·There is a distinct risk of an “error of parallax” in trying to read a car’s speedometer from the passenger seat;
·Mr Rex was obviously severely intoxicated, having been drinking beer and shots of “Bacardi 151”, a high-alcohol drink, with his brother – he adverted to gaps in his memory of the evening (T53), and the consensus of the other witnesses was that both Mathew Rex and Sam Rex were severely intoxicated (see the evidence of Claire Perrin at T9, Jacqueline Ewens at T23, Daniel Tsiavlis at T77-78);
·Mr Rex evinced a clear intention when giving evidence to maximize Mr Jongewaard’s role in the events of the evening and minimize his own. For example, he insisted it was Mr Jongewaard’s idea to drive into Normanville to get cigarettes, when several of the other witnesses said that he had asked several times that afternoon to be taken into Normanville for that purpose. For example, Claire Ewens said that Sam Rex had been “bugging everyone” about it that afternoon (T101);
The only other evidence of speed came from Mr Jongewaard himself.
In his interview with the police at 12.46am on 11 February 2007 (Exhibit P5), Mr Jongewaard said:
… I’d hazard a guess that I would’ve been doing 80 by that stage as I, as I had hit him…”
(p10 and again at p23)
In his second interview with police at 9.32 pm on 12 February 2007 (Exhibit P6), he said that he was travelling at “between say 80 to 100” just prior to the accident (p13).
When he gave evidence, Mr Jongewaard said:
… I would have been doing 60 and then as I saw the sign I would have been increasing my speed to the 80 Km”. (T163)
He denied driving at 100 kilometres per hour. He said he did not remember saying to the police that he was doing 80 to 100 kilometres per hour. He said:
… thinking more about it I was, yeah, I was pretty clear that I was doing whatever the speed limit said on those particular signs. (T174)
I must say that Mr Jongewaard’s evidence on this topic is unsatisfactory, and strongly suggests to me that he has reconstructed these events in his mind to be consistent with the most favourable position for him.
Further, the evidence does not sit well with the evidence of Mrs Judith Perrin, Claire Perrin’s mother. Claire had telephoned her mother after the accident, while she and Mr Jongewaard and Peter Raw were waiting at the villa. The other females had left for the accident scene. Mrs Perrin said that after Claire told her what she knew, she asked to speak to Mr Jongewaard. She said the following conversation took place:
AI asked Chris what had happened and he said ‘I think I’ve hit Matt’.
QWhat did you say to that.
AMy initial reaction was ‘How fast were you going?’.
QIs that what you said to him.
AYes, and he said he was doing about 100.
QDid you understand that to be 100 km/h.
AI just presumed that, yes.
Claire Perrin also gave evidence that she heard Mr Jongewaard say that while he was on the phone to her mother (T11).
On the basis of all this evidence, I am satisfied beyond what I regard as a reasonable doubt that Mr Jongewaard was driving in excess of 80 kilometres per hour at the time of the collision, although I am not able to identify the extent of the excess. I accept that the speed was less than 100 kilometres per hour.
Lookout
Mr Jongewaard gave evidence that the headlights of his vehicle were on low-beam at the time of the collision, because there was a car coming the other way. He said that he had seen the headlights of that car when he first turned into Main South road (T164).
There is no evidence of the distance over which the roadway ahead of Mr Jongewaard’s car would have been illuminated by its headlights on low-beam. I note in passing that Rule 82(2) of the Road Traffic (Vehicle Standards) Rules 1999 states that a low-beam headlight must illuminate the road ahead of the vehicle at night for at least 25 metres. It is an agreed fact that the car was in good mechanical condition, but I can infer nothing from that which is relevant to this topic.
The evidence is that Mr Rex was riding the bicycle to the right, or west, of the fog line on the left-hand side of the road. East of the fog line was a bitumen shoulder 0.9 metres wide. East of that again was a sandy verge. Daniel Tsiavlis said he was riding on the shoulder, because the narrow tyres on the road bike he was riding prevented him riding on the verge (T81).
Brevet Sergeant Kuchenmeister said that the point of impact was indicated by a scrape mark in the bitumen which was 0.45 metres west of the fog line. The position is demonstrated in photographs 5 to 8 of Exhibit P1.
The mountain bike Mr Rex was riding, and the road bike Mr Tsiavlis was riding were not equipped with lights or even reflectors (T80). Mr Rex and Mr Tsiavlis were not wearing helmets. Mr Rex was riding in bare feet. The mountain bike had pedals designed to be used when the rider is wearing special shoes with cleats in the soles (see photo number 3 of Exhibit P1), so that riding in bare feet would have been very uncomfortable. Mr Rex was not wearing any reflective or other night-visible clothing.
Compounding these difficulties was the lack of any street lighting, and the large trees on the eastern side of the road. Mr Alderson, the motorist flagged down by Mr Tsiavlis, and who does not drink alcohol at all, said:
A… it was very dark near – in the area of the pine trees,, and I was driving quite slow and as I was driving, I said to the other people in the car ‘did you see that girl dancing on the side of the road?’. And Jane and David said ‘No’ and Arlene said ‘Yes’ and I said ‘Did that look strange?’. And she said ‘Yes’ and I said ‘Do you think we should go back and see if she is all right?’. And she said ‘Yes’, so we did a U-turn and went back.
…
AWe came back and I saw – we realised it wasn’t a girl and it was actually a young man and he was hysterical, screaming and jumping up and down, and there was a boy on the ground. And I realised straightaway that there had been an accident of some sort.
The young man who was screaming and jumping up and down was Daniel Tsiavlis.
Mr White sought to draw a parallel between the observations of Mr Alderson and Mr Jongewaard. Mr Alderson said he was only doing “around 50 if I was lucky” (T11). It is true that Mr Alderson’s observation was also fleeting, although Mr Tsaivlis was off the road and on the sandy verge when he was trying to attract attention. Mr Rex was riding directly in the path of Mr Jongewaard’s car, and should not have been in the periphery of his vision. The other thing worth noting about Mr Alderson’s evidence is that he said that the reason why he was travelling at only 50 kilometres per hour was that the area was so very dark, “especially around the pine trees” (T13).
As to what Mr Jongewaard said about his lookout that night, Claire Perrin gave evidence that, at the villa after the accident, Mr Jongewaard said “I didn’t see him, it was dark” (T11).
Jacqueline Ewens said that she asked Mr Jongewaard what had happened after she returned from the accident scene. She said:
I was just asking him what happened. And he said he was coming back and it was dark, and it was country roads, there’s no lights or anything, and he was looking for the turn-off and there was an oncoming car, and at the last minute he saw something at the side of the road and tried to make space for it but there was the oncoming car. He thought he compensated enough but don’t know – didn’t know what had happened, the bike had swerved or what, but he was sure he’d left enough room for –
Claire Ewens said that when Mr Jongewaard first arrived back at the villa, he gave her the impression he thought he had hit an animal, but then he said “they were all over the road, or something like that” (T103). She found these two statements somewhat confusing. This was, however, a high-pressure situation where communication can become confused.
In the first police interview (Exhibit P5), Mr Jongewaard described what he saw as follows:
AUn, well it was, it was pretty, pretty obvious that the car was coming from a great distance. I knew it was there. I didn’t, I had no reason to panic, just a normal, normal car coming in the opposite direction, and it wasn’t until that, you, I’d seen two, two figures in the corner of my eye, aft, you know, going at, at a speed, seen it in the corner of my eye and probably just come out a little bit and just to sort of compensate for both, both sides, not gonna hit them, not gonna hit the car, and the all of a sudden I’ve just heard a, heard a bang and Matt’s, er, Sam has, has said he’s hurt his arm from what’s going on, what’s happened, what, what’s happened. I’ve sort of half panicked and pulled into the accommodation and yeah, like I said, the other, the other things took place …
AIt’s hard to say, It, it was definitely a surprise for me. I, I was just driving and, and it was just like a, well it was definitely a surprise, I’ve just sort of, sort of moved out a little bit, trying to compensate for both sides, so it was a bit of a, you know, obviously guessing game at that stage …
A… I, I, well I didn’t see much at all. All I’ve seen at the last minute was little figurines sort of half moving on the road, on the side of the road, two abreast. (p11-12)
He added that he could see at the last minute that they were cyclists, as he could see the “legs going around” (p16). Both cyclists were on the bitumen. He said he “panicked at the last minute”, he had taken his foot off the accelerator, but did not brake as “I’d probably frozen then, I’d probably rolled past them” (p17). In the second police interview (Exhibit P6), a day later, Mr Jongewaard gave a similar account:
AUn, there was nothing specifically happening. We were just basically driving alo9ng. He was having a smoke. I’d probably, you, maybe had a drag of his cigarette at the time. Like, there was no specific- Something wasn’t specifically happening in the car. I’d seen the turnoff coming up to the, to the right hand side. I’d probably been looking. I, I remember looking at the, the whole place sort of lit up, thinking that’s where I’ve got to turn, and just looking at the, the car, the oncoming car, and then I’ve just caught these, these two things in the corner, in my peripheral, and then tried to, tried to move out and tried to accommodate for those guys and obviously I haven’t accommodated enough or, or Matt’s moved at, at the last minute or something like that. That’s all I can think. (p13-14)
Finally, when giving evidence, Mr Jongewaard said:
AI passed the 80 sign and, you know, I’d been concentrating on the light on the right-hand side and obviously the car – oncoming car, just, it wasn’t – I wasn’t really – you know, I was just concentrating on getting back to the accommodation and then a short time after I’d seen something in the corner of my eye.
QWhat did you see.
AJust two figures, basically. It, you know, happened so quickly. It was just something in my periphery, it picked up. Mostly my vision was to the right and straight.
QWhere were these two figures in relation to the lane.
AThey were – yeah, just in relation to the lane I think they were definitely in my – on my side of the road.
QWhere were they in relation to the front of your car in terms of the left, right or middle.
AThey would have been sort of on my left.
QWhat did you do when you first saw the figures.
AI basically - it obviously caught be by surprise at the time and then I – I’ve tried to – at the same time of seeing this oncoming car I’ve tried to accommodate for those figures that I’ve seen momentarily and then shortly after I hit something. (T164-5)
Again, he spoke of trying to “accommodate” the oncoming car and the two figures, that he edged out a “little bit”, “in an attempt to try and miss these objects”. He admitted he did not brake at all (T165).
As I mentioned earlier, Brevet Sergeant Kuchenmeister said that the approximate point of impact was 0.45 metres to the right, or west of the eastern fog line on Main South Road.
There were no tyre marks on the road or any other indications that Mr Jongewaard applied the brakes to avoid the collision with Mr Rex.
Photograph number 12 of Exhibit P1 demonstrates that the rear tyre of the bicycle collided with the extreme left-hand side of Mr Jongewaard’s car. I agree with the submission of Mr White that the photograph adds credence to Mr Jongewaard’s evidence that he moved to the right to try to avoid the collision, and almost succeeded.
Brevet Sergeant Kuchenmeister said that the reaction time of a normal, prudent driver is between one and two seconds (T151). There is no research which gives clear guidance as to what extent such a standard is affected by alcohol consumption (T152), although commonsense suggests that it would be affected to some extent.
A vehicle travelling at 80 kilometres per hour is travelling at 22.2 metres per second. A vehicle travelling at 100 kilometres per hour is travelling at 27.8 metres per second. If Mr Jongewaard had a normal, prudent reaction time, ignoring the effects of alcohol, then at 80 kilometres per hour he would have travelled between 22.2 and 44.4 metres before being able to take evasive action, and at 100 kilometres per hour he would have required between 27.8 and 55.6 metres.
In those circumstances, in my opinion, Mr Jongewaard’s lookout was defective. The onus was on him to drive within the capabilities of his headlights at that speed and in those particular circumstances. His attention was focussed on the oncoming car and the turnoff to the resort.
Count 1 – Elements of the offence
In order to convict Mr Jongewaard, the prosecution must prove beyond reasonable doubt each of the following elements:
1.that he drove the motor vehicle in a manner which was dangerous to the public;
2.by that dangerous driving, he caused serious harm to Mr Rex.
Additionally, the prosecution must prove beyond reasonable doubt the circumstances of aggravation, namely that at the time the harm was caused, Mr Jongewaard had a blood alcohol concentration in excess of 0.08 grams per 100 millilitres.
As to the first element, the relevant authorities were referred to by Doyle CJ in Jaeschke (supra) at [33-34]. His Honour wrote:
In McBride v The Queen (1966) 115 CLR 44 the High Court considered the meaning of driving in a manner dangerous to the public. In a passage often referred to with approval in later cases, Barwick CJ said at 49-50:
“The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public, but the need for death or injury to a person to result from impact with a vehicle so driven may make that question unlikely to arise, though the possibility of its doing so must be acknowledged.”
In Jiminez v The Queen (1992) 173 CLR 572 the High Court referred with approval to this passage. The majority (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) said at 579:
“The manner of driving encompasses "all matters connected with the management and control of a car by a driver when it is being driven" R v Coventry (1938) 59 CLR 633 at 639. For the driving to be dangerous for the purposes of s 52A there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention. Although a course of conduct is involved it need not take place over any considerable period. (footnotes omitted)”
The concept identified in these passages is clear enough, although its application to a given set of circumstances may require careful assessment.
It is the practice in this State for judges to direct juries in accordance with these principles. The form of the direction commonly given is based on a direction given by Napier CJ in The Queen v Duncan, which appears as a note to the report of the decision in The Queen v Mayne (1975) 11 SASR 583. There, Bray CJ said at 585:
“Thus it is customary to distinguish between such departures from the proper standard of care as may be regarded as ordinary risks of the road, even if they would found a civil action, and such a manner of driving exposing other road users to such a risk as "any reasonable person in the situation of the driver ought to recognize as a real danger to the public" (Duncan's case). Moreover it is also customary and usual, and probably, in view of the provisions of s 14a, obligatory, to tell the jury of their power to convict of a lesser offence under that section and to invite them to consider in an ascending order of seriousness whether the manner of driving they find against the accused was not negligent at all or was such as to show merely that he was driving without due care or attention or such as to be dangerous to the public. If they are satisfied beyond reasonable doubt that it falls into the third category, they then have to consider further whether it caused the death alleged. (footnote omitted)”
So, in order to prove the first element, the prosecution must demonstrate that the manner of driving was such a grave departure from the standard of care expected of a road user that it imposed a risk which any person in the position of the accused would recognise as a real danger to the public.
This offence is created by s.19A(3) of the Criminal Law Consolidation Act, 1935. Section 19B(3) provides that if I am not satisfied that Mr Jongewaard is guilty of the offence charged, I may bring in a verdict that he is guilty of a less serious offence to which that subsection applies. In this case, the less serious offence is driving without due care, contrary to s.45 of the Road Traffic Act, 1961.
The distinction between the two offences is one of degree. Driving without due care is a departure from the standard of care expected of a reasonable driver in the position of the accused, but which is not so serious as to fit the criteria for driving in a manner which is dangerous to the public which I have already outlined.
Application of law to facts of the case
In my judgment, Mr Jongewaard’s failure to see Mr Rex on the road in front of him until it was too late to brake or take other effective action to avoid a collision was a departure from the standard of care to be expected of a driver in his position. It was the result of the combination of excessive speed and defective lookout, complicated by the effects of alcohol. The passages of his interviews and evidence quoted above indicate that he was concentrating on the approaching car, and looking for the turnoff to the resort. The fact that he only saw Mr Rex in his peripheral vision when Mr Rex was riding in a position west of the fog line indicates that Mr Jongewaard’s lookout was defective. The fact that he was driving at more than 80 kilometres per hour with his lights on low-beam on an unlit country road, having consumed a substantial amount of alcohol, strengthens that conclusion.
In Jaeschke, the accused had driven over the victim, who was lying on a country road late at night when his lights were on low-beam. The jury found him guilty of causing death by dangerous driving. In considering whether the verdict was open on the evidence, Doyle CJ, with whom the other members of the Court of Criminal Appeal agreed, said:
I see no reason why the jury could not use their own experience to make due allowance, in making that final decision, for the natural visibility at the time and place (to the extent that was relevant), for the unexpected nature of the presence of an object on the road, for ordinary reaction times, and for the effect of headlights on low beam …
The final decision, the assessment of the quality of Mr Jaeschke’s driving, is one on which minds might well differ. The jury’s verdict was by majority. But I do not agree that having regard to all the circumstances, it was not open to the jury to be satisfied that Mr Jaeschke’s driving was appropriately characterised as dangerous to the public. In my opinion that conclusion was open to the jury even though I acknowledge that it is an issue on which minds might differ.
In this case, the factors I have mentioned above must be weighed against several factors which make Mr Jongewaard’s driving more excusable:
·Mr Jongewaard’s unfamiliarity with the area;
·the fact that Mr Rex was riding a bicycle without lights or reflectors, without a helmet or shoes, in dull-coloured clothing, in a highly intoxicated state, on the wrong side of the fog line;
·the unusually dark conditions created by the pine trees and lack of ambient lighting in the area;
·the challenges presented by the oncoming car and the unlit driveway to the resort.
I recognise that it is open on this evidence to find that Mr Jongewaard’s driving was dangerous to the public. However, in view of the above, the tragic concatenation of circumstances which led to the collision, I conclude that Mr Jongewaard’s driving was not such a grave departure from the standard of care expected of a road users that it imposed a risk which any ordinary person in the position of Mr Jongewaard, that is, in the circumstances prevailing that evening, would recognise as a real danger to the public. I emphasise that this has been a difficult decision. Mr Jongewaard’s driving departed from due care in several respects. But I am not satisfied beyond reasonable doubt that he is guilty of Count 1. I am, however, satisfied beyond reasonable doubt that Mr Jongewaard was, for the reasons I have just expressed, driving without due care.
In view of that finding, it is not necessary to make a finding about the second element of the offence. However in case I am wrong about the first element, I record that the second element has been clearly established beyond reasonable doubt. The statement of Dr Jeeves records the multiple serious injuries Mr Rex suffered in the collision. These clearly fit the criteria for “serious harm” in s.21 of the Criminal Law Consolidation Act. Mr White did not suggest the contrary in his address.
I am also satisfied beyond reasonable doubt that Mr Jongewaard’s driving was a substantial cause of Mr Rex’s injuries. Clearly, another substantial cause was the reckless and dangerous way in which Mr Rex was riding the bicycle, but that does not relieve Mr Jongewaard from his responsibility for the causation of Mr Rex’s injuries. The fact that Mr Jongewaard’s driving was a substantial cause of the injuries is sufficient for the purposes of s.19A(3) of the Act.
Circumstances of Aggravation
Section 19B(3) of the Criminal Law Consolidation Act, 1935, provides that the “less serious” offences to which s.19B(3) applies, and hence the offences for which I may record an alternative verdict if I am not satisfied of Mr Jongewaard’s guilt of Count 1, include “the offence constituted by s.45 of the Road Traffic Act”. I note that the section refers to “offence” in the singular rather than the plural sense.
Section 45(1) of the Road Traffic Act creates the offence of driving a vehicle without due care or attention. Section 45(2) provides that more serious penalties apply “if the court convicts a person of an offence against this section that is an aggravated offence”.
Having regard to the way s.45 is structured, and having regard to the use of the singular “offence” in s.19B(2) of the Criminal Law Consolidation Act, I conclude that s.45 of the Road Traffic Act creates only one offence, which can either be aggravated or not according to the circumstances (see R v Hoang (2002) 83 SASR 254, at [18] to [25]). I conclude that it is open to record an alternative verdict of aggravated driving without due care pursuant to s.19B(3) of the Criminal Law Consolidation Act.
Section 45(3) of the Road Traffic Act provides that an offence can be an aggravated offence in a number of situations, but relevantly to this case, they include:
·an offence that caused serious harm to a person (s.45(3)(a));
·an offence committed while there was present in the offenders blood a concentration of 0.08 grams or more of alcohol in 100 millilitres of blood.
The definition of “serious harm” in the Road Traffic Act is almost the same as that in the Criminal Law Consolidation Act. Both sections refer to “serious and protracted impairment of a physical or mental function”, and “serious disfigurement” (see Criminal Law Consolidation Act s.21; Road Traffic Act, s.45(5)).
I am not satisfied beyond reasonable doubt that Mr Jongewaard’s blood, at the time of driving, contained a concentration of alcohol higher than 0.08 grams per 100 millilitres. Mr Lokan’s evidence was that these figures were estimates, and that it is not possible to be precise. For those reasons, the evidence is not sufficiently precise to justify a conclusion beyond reasonable doubt.
I am satisfied, however, for the reasons I expressed earlier, that Mr Rex suffered serious harm in the collision.
Pursuant to s.19B(3) of the Act, my verdict on Count 1 is therefore “Not guilty, but guilty of aggravated driving without due care, contrary to s.45 of the Road Traffic Act, 1961.
Count 2 – Elements of the offence
In order to convict Mr Jongewaard, the prosecution must prove beyond reasonable doubt each of the following elements:
1. the accused drove the motor vehicle without due care or attention;
2. by that conduct caused physical harm to Mr Rex;
3. the accused failed to satisfy the statutory obligations of a driver of a vehicle in relation to the incident.
The statutory obligations of a driver in these circumstances are prescribed in Part 3 of the Road Traffic Act, 1961. Section 43 of that Act states:
43—Duty to stop, give assistance and present to police where person killed or injured
(1) The driver of a vehicle involved in an accident in which a person is killed or injured must—
(a) immediately after the accident—
(i) stop the vehicle; and
(ii) give all possible assistance; and
(b) not more than 90 minutes after the accident, present himself or herself to a police officer at the scene of the accident or at a police station for the purpose of providing particulars of the accident and submitting to any requirement to undergo a test relating to the presence of alcohol or a drug in his or her blood or oral fluid.
It is to be noted from the use of the conjunctive “and” that the duties of a driver in s.43(1)(a) and (b) are cumulative, they are not alternative to each other.
I am satisfied beyond reasonable doubt that Mr Jongewaard did not stop his vehicle immediately after the accident. That was inherent in his evidence that instead of doing so he decided to “go back and get help” at their accommodation (T166). It is also inherent in that conclusion that he did not render “all possible assistance” to Mr Rex.
For those reasons, Mr Jongewaard has not satisfied the statutory obligations of a driver of a vehicle in relation to the incident.
I am therefore satisfied beyond reasonable doubt that all three elements of Count 2 have been proved beyond reasonable doubt.
The section 43(3) Defence
Section 43(3) of the Road Traffic Act provides:
(3) It is a defence to a charge of an offence against subsection (1) to prove that—
(a) the defendant was unaware that the accident had occurred and that the defendant's lack of awareness was reasonable in the circumstances; or
(b) in relation only to a failure to comply with subsection (1)(a), the defendant—
(i) genuinely believed on reasonable grounds that compliance with subsection (1)(a) would endanger his or her physical safety, or the physical safety of another person; and
(ii) at the earliest opportunity notified police, ambulance or some other authority responsible for providing emergency services of the accident; or
(c) in relation only to a failure to comply with subsection (1)(b), the defendant—
(i) had a reasonable excuse for the failure to comply; and
(ii) presented himself or herself to a police officer as soon as possible after the accident.
Mr White, counsel for Mr Jongewaard, accepted that the onus was on Mr Jongewaard to demonstrate on the balance of probabilities that any of those criteria in s.43(3) have been made out.
Firstly, it is clear that Mr Jongewaard was aware that the accident occurred, so the defence in s.43(3)(a) does not arise.
As to s.43(3)(b), the use of the conjunctive “and” between each of subparagraphs (i) and (ii) shows that the criteria are cumulative, not alternative. Mr Jongewaard must demonstrate both that he had the genuine belief on reasonable grounds referred to in s.43(3)(b)(i), and that he notified the relevant emergency authority as required by s.43(3)(b)(ii).
Genuine belief on Reasonable Grounds
There is no evidence to suggest that Mr Jongewaard believed that immediately stopping after the accident would have endangered his own physical safety. The only people whose physical safety could possibly have been endangered were Mr Rex and Mr Tsiavlis. Mr Jongewaard had no idea of the condition of either of these people at the time. He could not have known whether only one, or both riders had been injured, since they were riding so close together, or to what extent. One of them might still have been lying on the roadway, for all he knew.
So the question becomes “did Mr Jongewaard genuinely believe, on reasonable grounds, that by immediately stopping he would endanger Mr Rex’s physical safety?”
By the time he gave evidence, Mr Jongewaard had obviously reflected upon this issue. He said in cross-examination:
QWhat did you decide to do once you realised you were in an accident.
AI was really confused at the time. I didn’t really know what to do. I sort of asked Sam a number of times. I didn’t really – it just happened so quickly and I didn’t really think too much right that second.
QDid you have your mobile phone with you.
ANo.
QDid you know where it was.
AI didn’t, no. I guess at the time I was nervous – I didn’t really, yeah, think too much right at the moment and then I just said ‘What do I do? What do I do?’, asking for a little bit of confirmation from Sam. There was nothing there so I made the decision to go back and get help.
QGo back where.
ATo the accommodation.
QWhat help were you going to get.
AI just knew that something, it was serious, and then, you know, the bang was enough to sake me up and make it apparent that it was really – that something needed to be done and I needed to get help.
QWhat sort of help were you thinking of.
AWell, I didn’t really know at the time. I just thought, you know, to get confirmation off some of the people back there, you know, Jacqui back there, friends, and I just knew that because I was getting help from her, discussing what needed to be done, just getting professional help as well.
When he spoke to the police, much more contemporaneously with the events, Mr Jongewaard’s state of mind was much less clear.
In the first interview, on the night of the incident (Exhibit P5), he said at p19:
AYeah, I have no idea, I couldn’t- Maybe. I, I was really confused, I , I didn’t know what to do. I had no idea. Don’t know why I didn’t stop. I’ve just gone into the driveway just thinking, I’ve got to get some help, got to get some help for this guy, for whoever it was at the time. I didn’t know who he was, so just pulled into the, into the place and gone “I need to , need to get some help for this person, and um, so it was basically just about getting, getting doing the right thing for him, so-
QDid you call an ambulance at all.
AI, I didn’t. I think Dan called the ambulance, which is my mate on, on-site, which is the other bike rider.
QOkay. And then you, you sat at the, the stairs.
AYeah.
QWaiting for-
AOh, I was just talking to Pete, “What, what am I gonna do, do I go out, what do I do?” I was really confused on what I should do, I was, yeah, obviously in shock on what to do. I’d seen the ambulance out there, should I go out there, should I not go out there. I’m so I stayed there and Pete’s just comforted me and said “Stay here, just relax and, and people will come and visit”.
In the second interview the following night (Exhibit P6), he said at p14:
AUm, I said, I, I think I, I was fairly panicking, I said “fuck, fuck, look what, what’s happened. I think I’ve just killed, killed someone, think I’ve killed someone.” I’ve pulled into the thing, I’ve gone “Fucking hell, I’ve f got to, I’ve got to get help, I’ve got- What do I, what do I ..?” I kept asking Sam “What do I do, what do I do?”. Drove straight up to the gate, didn’t know the code, couldn’t, couldn’t do anything there. I’ve got out of the car, I’ve jumped the fence and ran to the accommodation and the girls were coming down the steps with, with Clair’s, Clair on her phone, Clare Ewens on her phone, and they’ve just sort of looked at me and, and I’m sort of going “What’s going on here?” I think it was just a real mixed, mixed emotions. I, I didn’t know what they were doing, I don’t think they knew what I, what I was doing. All they said was “Matt’s been…” or, year, “Matt’s been hit by a car” or something like that, and I’ve gone, and I’ve just sort of froze up a little bit, or whatever, and said “Yeah, I’ve, I’ve hit, I’ve hit, hit a cyclist”: or whatever, and Jackie and Clair um, were saying, they were- Everyone was sort of getting into the car by that time. Jackie’s going, oh, you know, “You stay here, you stay here.” You know, I’d stay- And she came back again and said “You stay here. I wish I could stay with you but I’m more…”, yeah, what is it, more um, “I’m better off being with the car” and, you know, I think she’s got experience with um, with that, that type of thing so she’d left with, with the four girls, I think ti was four girls. One, I think Clair, ‘cos Clair, Matt’s girlfriend, stayed back with us for a period and I just stayed, stayed at the hot-, at the accommodation.
And, later, he said at p19:
QOkay. Just trying to understand about what’s going through your mind in regards to initially not stopping, continuing on and then not wanting to know about the condition.
AO well, I don’t think it was to the point where I’d not wanted to know the position, it was just I was in a state of shock and not, not being any use to, to Matt at that stage. It wasn’t, I don’t think um, you know, the- Oh, I have no idea, I don’t know why- It wasn’t in my mind to, to-, it wasn’t in my mind to, to flee the s-, flee the, flee the scene, it was just made the decision to, at that time thought the best choice for me is to go get, you know, help. Wasn’t sure that whoever was out there, you know, I had no idea that someone out there had a phone or, or either, you know, I don’t how the, how, how, what position they were in, so I just made the decision to go into that, into there and keep driving, go, get over the gate as soon as I can, and run to the accommodation and let people know what, what was going on, and um, and then basically the reason why I was staying there is because, you know, I, I wasn’t in a position to make a right decision on should I go out there or shouldn’t, shouldn’t I go out there, or should0 Yeah, so, I mean, I had my girlfriend and another couple of girls saying “You stay here, just relax, just calm down, we’ll go and sort it out, and then if anything needs to happen, you’re, you’re back here. I mean the accommodation was, what was it, a hundred, 200 metres from the, from the gate, so-
There is also the evidence of the female witnesses about things said by Mr Jongewaard when he returned to the villa. However, having regard to the obvious emergency situation at that time, and the fact that everybody was no doubt in a state of high agitation, I do not regard that evidence as particularly probative. There is evidence from Jacqueline Ewens that Mr Jongewaard said that help was needed (T28), and Peter Raw said something similar, whereas Caitlin Wells (at T48) and Claire Ewens (at T111) suggested that Mr Jongewaard was more concerned for his own position, wanting the code for the gate so he could get his car inside. They both suggested that Mr Jongewaard wanted to “hide” his car. It is an agreed fact that neither of them told police any such thing at the time. I reject this evidence.
Taking all the evidence into account, I am not persuaded on the balance of probabilities that Mr Jongewaard genuinely believed that to have stopped immediately would have endangered the physical safety of any person. It is more likely, on my view of the evidence, that he panicked, did not know what to do, and went back to the villa for advice and support. It is true that he did not have his mobile phone with him, but he did not know who did have it, let alone that Daniel Tsaivlis had it and had dialled “000” at the scene. He did not address his mind to the possibility of flagging down a passing motorist, as Mr Tsaivlis did, to obtain assistance.
Even if, contrary to my finding, he did have a genuine belief about that, the belief could not have been based upon reasonable grounds. To believe that he might have actually endangered the physical safety of Mr Rex or Mr Tsiavlis by stopping would have been quite unreasonable.
For those reasons, I reject Mr white’s submission that Mr Jongewaard has satisfied the requirements of s.43(3)(b)(i). That being the case, he has no defence to the charge.
Having found the three elements of Count 2 proved beyond reasonable doubt, and having rejected the submission that Mr Jongewaard has a defence to that charge, my verdict in relation to Count 2 is “guilty”.
Verdicts
Count 1: Not guilty, but guilty of aggravated driving without due care.
Count 2: Guilty
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