R v Ko - [2016] SADC 66

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KO
Criminal Trial by Judge Alone
[2016] SADC 66
Reasons for the Verdict of His Honour Auxiliary Judge David Smith
24 June 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
Accused charged with Causing Death by Dangerous Driving contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) - Accused drove across continuous double lines on a country highway contrary to r 139 of the Australian Road Rules (SA) - head-on collision with oncoming car resulting in death of the driver of oncoming car - primary issue was whether Accused's driving was dangerous but consideration also of the Accused's claims of amnesia and involuntariness.
VERDICT: Guilty.
Criminal Law Consolidation Act 1935 19A(1); Australian Road Rules (SA) r 132, referred to.
R v Coventry (1938) 59 CLR 633; Kroon v The Queen (1991) 55 SASR 476; R v Cain (2011) 111 SASR 301; R v Uduma [2013] SASCFC 2; R v Arnold [2003] SASC 422; Douglass v The Queen (2012) 290 ALR 699; R v Singh [2003] SASC 344; R v Richards (1994-1995) 77 A Crim R 1; Broadhurst v The Queen [1964] AC 441; TNT Management Pty Ltd v Brooks (1979) 23 ALR 345; Caswell v Powell Duffryn Associated Colleries Ltd [1939] 3 All ER 722, considered.

R v KO
[2016] SADC 66
Introduction

The Accused Sung-Hung Ko is charged with the following offences:
First Count
Statement of Offence
Causing Death by Dangerous Driving. (Section 19A(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Sung-Hung Ko on the 19^th day of August 2014 at Nuriootpa, drove a motor vehicle in a manner which was dangerous to the public and thereby caused the death of Harvinder Kaur.
Second Count
Statement of Offence
Aggravated Driving Without Due Care. (Section 45(1) of the Road Traffic Act 1961).
Particulars of Offence
Sung-Hung Ko on the 19^th day of August 2014 at Nuriootpa, drove a motor vehicle without due care or attention.
It is further alleged that Sung-Hung Ko caused the death of Harvinder Kaur.
Count 2 is an alternative to count 1. The Accused pleaded not guilty to count 1 but guilty to count 2. The Prosecution would not accept the plea of guilty in satisfaction of the Information. Accordingly, count 1 has proceeded to trial.
The Accused elected for a trial by Judge without a jury.
Summary of Facts
The charges arise from a fatal motor vehicle collision which occurred at about 3:15 pm on Tuesday 19 August 2014, on the Sturt Highway, west of Nuriootpa. A Ford sedan, which was being driven by the Accused in a westerly direction towards Adelaide, crossed the double lines and collided ‘head-on’ with an oncoming Mazda sedan driven, by Ms Harvinder Kaur. Ms Kaur died at the scene. Her death was caused by the injuries she sustained in the collision. The Accused was also injured. After being extricated from his vehicle he was ‘air-lifted’ to the Royal Adelaide Hospital. Upon his discharge some three weeks later he was arrested and charged with the above offences.
There is nothing contentious in the above summary. It constitutes part of my findings.
Legal Directions
Before setting out my detailed findings I direct myself as to some of the applicable legal principles.
Of course, the Prosecution bears the onus of proving each of the elements of the offence beyond reasonable doubt.
There are three elements to the offence of Causing Death by Dangerous Driving. In this case the Prosecution must prove beyond reasonable doubt:
·      that the Accused was the driver of the said Ford sedan;
·      that the said sedan was being driven by the Accused in a manner which was dangerous to the public; and
·      that by driving in such a manner the Accused caused the death of Harvinder Kaur.
In respect of the first element there is no dispute. The Accused admitted that he was the driver of the Ford sedan which crossed onto the incorrect side of the highway into the path of the deceased’s vehicle. Apart from his sworn admission, there is other evidence which establishes that fact beyond sensible debate.
In respect of the second element I direct myself that ‘dangerous driving’, within the meaning of s 19A(1) of the Criminal Law Consolidation Act 1935, is a manner of driving which imposes a risk on other road users, which a reasonable person, in the situation of the Accused, would recognise as being a real danger to the public. It is a risk, which a reasonable person in the situation of the Accused, would recognise as exceeding the ordinary risks of the road to the degree of constituting a serious danger to the public.
The Prosecution must prove that the driving was voluntary, that is, a willed and conscious act. However, it does not matter what the Accused intended. The Prosecution does not have to prove that the Accused knew and realised that his driving was dangerous. In particular, it is not an element of the offence that the Accused have a specified state of mind.[1]
[1] see R v Coventry (1938) 59 CLR 633 per Latham CJ, Rich, Dixon, McTiernan JJ at 638; see also Kroon v The Queen (1991) 55 SASR 476; R v Cain (2011) 111 SASR 301; R v Uduma [2013] SASCFC 2.
Also, the cause of the alleged dangerous driving – in this case, what it was that was responsible for the Accused’s driving onto the incorrect side of the road – is not an element of the offence.[2]
[2] see Arnold [2003] SASC 422 per Mullighan J at [68].
The third element requires proof that the dangerous driving of the Ford sedan by the Accused caused the death. In this case the unchallenged evidence establishes that the driving of the Accused ‘caused’ the death of Ms Kaur.[3]
[3] see Agreed Facts 1 to 5, together with the agreed declarations of civilian and police witnesses who were at the scene of the collision observing her.
Therefore, it is the second element which is the issue in this matter. The question for me is whether, in all the circumstances, the driving of the Accused was ‘dangerous’ within the meaning of the section. Of course that must be proven beyond reasonable doubt and therefore, any hypothesis, reasonably arising on the evidence, which is consistent with the Accused not having so driven, must be excluded or negatived – to use a particularly awkward phrase – as being ‘… not reasonably possibly true …’.[4]
[4] see Douglass v The Queen (2012) 290 ALR 699 at [8]; see also R v Uduma at [35] per Gray J.
The Accused elected to give evidence. I therefore specifically acknowledge that the Accused has taken the witness box and subjected himself to the cross-examination. I will have due regard to his evidence, as I would other witnesses in the case, and bring to bear, in relation to it, an impartial judgment.
In his evidence the Accused claimed to have no memory of the circumstances of the collision. If I accept that evidence as true, I direct myself to weigh up, with care, the fact that he had no memory of the collision and thereby has been unable to offer some explanation.[5]
[5] see R v Arnold (supra) per Mullighan J at [68]; R v Singh [2003] SASC 344 at [135]-[137]; R v Richards (1994-1995) 77 A Crim R 1; Broadhurst v The Queen [1964] AC 441 at 459.
Findings
There is no substantial dispute about the facts of this matter, save that Prosecuting counsel, Ms Cairney invites me to find that the Accused’s claim, of having no memory of the collision, is false. I will leave that contention whilst I set out my other findings.
The Prosecution’s evidence is made up, inter alia, of a Statement of Agreed Facts and 15 witness declarations.[6] Further, there is oral evidence from Senior Constable John Hong of the Major Crash Investigation Section, which supplements what he said in his declaration. Finally, I admitted in evidence further photographs, plans and a dashboard camera disc.[7]
[6] see Exhibits P1 and P9.
[7] see Exhibits P2 to P8.
As indicated, the Accused elected to give evidence. He testified inter alia, that he remembered leaving for Adelaide, stopping en route at Blanchetown to refuel and then his next memory was being in hospital.[8] Nonetheless he agreed he was the driver of the Ford sedan which crashed into Ms Kaur’s Mazda sedan.[9]
[8] T55.
[9] T57.
The following narrative of findings emerges from all the evidence I have just identified.
I start with the circumstances leading up to the collision.
The Accused was born in Taiwan on 9 July 1987, and accordingly, was 27 years old at the date of the collision. Prior to coming to Australia he resided with his family in Taiwan where he completed his schooling, a university course and Army service. He also worked for a short time.
In 2005 the Accused applied for and obtained a driver’s licence in Taipei. He said that he did not drive with any regularity in his home country. He did not own a motor vehicle and though there was a family car, he rarely drove it. He accepted, in cross-examination, that he drove from time to time when he was in the Army. He confirmed that the traffic laws in Taiwan required that vehicles keep to the right. On the 10 February 2014, just days before travelling to Australia, he obtained an International Driver’s Licence from the Ministry of Transportation and Communications of the Republic of China.
The Accused arrived in Australia in February 2014 for a working holiday. He held the appropriate visa. Upon first arriving he spent some time in Adelaide and then moved to Virginia. When in Virginia he purchased the Ford sedan which was involved in the collision. The registration of the vehicle was transferred to him on 20 May 2014. Then, on 26 May, he drove to Swan Reach having obtained a job there with a labour supply business named Seasonal Workplace Services. He obtained accommodation in the Swan Reach Backpackers Hostel which was operated by a Ms Lynne Breez, who was also the principal of Seasonal Workplace Services. Through Seasonal Workplace Services the Accused worked packing potatoes for Oakville Potatoes in a factory in nearby Nildottie. The evidence, of the two production manager’s from the potato business and from Ms Lynne Breez, makes it clear, that the work carried out by the Accused was neither fatiguing nor physically demanding. They said that he coped without difficulty and was a happy and sought after worker. In particular, the Production Supervisor at Oakville Potatoes, Mr Wayne Phillips, said that the Accused did not appear to be fatigued on the day of the collision and further he said that the Accused had no medical or physical conditions which affected his ability to perform his job. Notably in his visa application the Accused did not declare any medical conditions.[10]
[10] see Agreed Fact No. 2.
Although variable, the usual workday was from 7:00 am in the morning to 5:00 pm in the afternoon with breaks for, inter alia, lunch.
Such was the Accused’s situation as at the date of the collision. He was living at the Swan Reach Hostel and working at the Oakville Potato Farm. He socialised with other backpackers and drove the 18 kilometres to and from work in his Ford sedan. On his days off he would drive his car to such places as Adelaide, Waikerie, Mannum and Murray Bridge. The Accused said that he had driven to Adelaide and back from Swan Reach five or six times before the occasion of the collision.[11] He said he appreciated that it was impermissible and contrary to the Road Rules to cross double white lines.[12] He denied that he occasionally became confused about having to keep to the left. He denied that he had ever mistakenly headed to the right side of the road.[13]
[11] T69.
[12] T71.
[13] T79.
On the weekend prior to the collision the Accused made plans to travel to Adelaide on the following Tuesday to deliver some papers to a Government office in Adelaide on behalf of some fellow workers.[14]
[14] T68.
On Monday 18 August 2014 the Accused commenced work at 7:00 am and finished at 6:15 pm. Allowing for a lunch break, he worked a total of 10 hours and 45 minutes. On the following day, namely Tuesday 19 August, he commenced work again at 7:00 am, and having obtained permission, he left work at 1:30 pm in order to drive to Adelaide. He was observed by Lynne Breez heading off.
A receipt, found in the wreckage of his car, indicated that the Accused stopped at a BP service station at Blanchetown at about 2:26 pm where he purchased fuel. Blanchetown is 60 kilometres from Nuriootpa.
The deceased, Harvinder Kaur, was born on 22 October 1958 and, therefore, was 57 years old at the time of the collision. She lived alone in Waikerie, but regularly came to Adelaide to visit family members, some of whom resided in Parafield Gardens. On Sunday 17 August 2014 she made one such trip and stayed with her relatives at Parafield Gardens. On the afternoon of Tuesday 19 August she departed for her home in Waikerie. She headed off in her Mazda sedan travelling eastward on the Sturt Highway to the Riverland. At about 3:15 pm on that day she was nearing Nuriootpa.
I now turn to the circumstances of the collision.
There were no eye witnesses to the actual collision. However, two motorists Suzanne Gibbins and Steven Schilling, who were travelling behind Mrs Kaur’s Mazda, arrived at the scene within, what must have been, seconds of the impact. In his declaration Mr Schilling, who was driving the semi-trailer, spoke of seeing ‘… a large cloud of steam and a short sudden movement of a car …’ on the hill ahead of him.[15] These two witnesses stopped. They were confronted by two seriously damaged motor vehicles and two injured drivers trapped in the wreckage of their vehicles. Mrs Gibbins and Mr Schilling immediately summonsed assistance. They fixed the time when they arrived at the scene at about 3:15 pm. The local police arrived quickly followed by the CFS and ambulance service. Also, officers from the Major Crash Investigation Section of South Australia Police attended and commenced their investigation.
[15] see Exhibit P1 Declaration 4.
What happened has been expertly reconstructed from the physical signs and other intelligence gathered at the scene by the officers from the Major Crash Investigation Section, and in particular, by Senior Constable Hong. Notwithstanding that I am not necessarily constrained by expert opinion, I indicate that I accept without reservation, Senior Constable Hong’s evidence. Indeed, apart from an inconsequential challenge from Defence counsel about where the point of impact should be and whether the Accused could have fallen asleep, Senior Constable Hong’s evidence, and that of his colleagues, was not seriously challenged.
Put succinctly Senior Constable Hong concluded:
… At the time of the collision, the Ford sedan was being driven west on Sturt Highway by Sung-Hung Ko … when it crossed the double painted white lines onto the incorrect side of the road and collided with the Mazda sedan, being driven east by Harvinder Kaur …[16]
[16] see Exhibit P1 Declaration dated 30 January 2015 at p 4.
I mention hereunder some, but not all, of the detailed information which presented itself to the investigators. Much of what is particularised below is graphically illustrated in the photographs and plans adduced in evidence. I list hereunder what I consider to be the main points.
·       The collision site was on the Sturt Highway about 1.7 kilometres west of Nuriootpa.
·       Although, strictly speaking, the highway runs north-east and south-west at the accident location, for convenience it has been described in the evidence as east and west.
·       For traffic travelling west from Nuriootpa, the roadway ascends gradually and continuously peaking a short distance to the west of the place of the collision, and has the shape of a long sweeping left-hand bend. This is shown in particular in the Google Map and photograph number 1 attached to the declaration of Senior Constable Hong.
·       The roadway is constructed of bitumen and was in good repair. Putting aside the debris generated by the collision, there were no loose impediments on the road surface which could have contributed to the collision.
·       The roadway at the scene consisted of a single traffic lane for eastbound traffic and two traffic lanes for westbound traffic. A double solid white line separated the single carriageway for eastbound traffic from the dual carriageway for westbound traffic. All photographs depict this.
·       For westbound traffic at a place a short distance east of the collision site, there was an advisory sign at the left edge of the roadway indicating that, of the two lanes for westbound traffic, the left lane terminated in 500 metres.
·       The speed limit on this relevant section of the highway was 110 kilometres per hour.
·       At the time of the collision the weather was fine and sunny and visibility was excellent.
·       Following the impact the Ford sedan came to rest facing diagonally across the broken dividing line of the two lanes for westbound traffic. The Ford vehicle had extensive crush damage to its front right section and the bumper bar and the right front wheel were torn off the vehicle. The driver’s seatbelt had been cut clearly by the emergency services personnel when they extricated the Accused. It is clear that he was wearing a seatbelt at the time.
·       Following the impact the Mazda sedan came to rest on the northern side of the highway with its rear off the ground and resting on the top of the guardrail. There was extensive damage to the right front corner of the Mazda vehicle and, inter alia, its front bumper and front right wheel were torn off. It is also clear that the deceased was wearing her seatbelt at the time.
·       The point of impact for the collision was wholly within the single lane for eastbound traffic and was fixed by reference to scrape marks and tyre marks which extended to the ‘at rest’ positions of both vehicles. The point of impact was fixed by reference to a Department of Transport, Energy and Infrastructure Highway Marker number 61.
·       The said tyre marks, gouge marks and scrape marks discovered on the roadway were determined to have been ‘post impact’. There was also a fluid spill. These items of physical evidence enabled the investigators to fix, not only the point of impact, but also the movement of each vehicle ‘post impact’.
·       The air bag module from the deceased’s Mazda sedan, and in particular, the data stored on it disclosed that the vehicle’s speed prior to impact was 101 kilometres per hour and at impact was 85 kilometres per hour. The same data yielded an estimate of impact speed of the Ford sedan of between 90 and 100 kilometres per hour.
·       Both the deceased’s Mazda and the Accused’s Ford were in reasonable condition prior to the collision. There was nothing mechanically wrong with either vehicle which could have contributed to or caused the collision.[17]
·       There was no evidence that either the deceased or the Accused were at the time of the collision, adversely affected by alcohol or drugs.[18]
[17] see Declaration of Eliot Cameron McDonald, vehicle examiner Major Crash Investigation Section dated 21 January 2015.
[18] see Exhibit P1 attachments 14 and 15.
Accordingly, I conclude that what happened was as follows.
At about 3:15 pm the deceased had reached the crest of the slight hill on the highway and was driving down the sweeping right-hand bend heading to Nuriootpa. She was driving her Mazda vehicle at about 101 kilometres per hour. The Accused, driving his Ford, was approaching from the opposite direction, at a speed of about 100 kilometres per hour. At some point, as his Ford was negotiating, what was for him, the shallow left-hand bend and ascending the slight incline, his vehicle crossed the continuous double lines onto the incorrect side of the highway. A positive finding, that is, a finding beyond reasonable doubt, about where the encroachment occurred is not possible.[19] In any event, the deceased was, at some point in time before impact, confronted with a vehicle driving towards her on the incorrect side of the road, contrary to the road markings. In response she may have veered slightly to her left.[20] Indeed, she may have braked. The ABS braking system on her vehicle may have prevented skid marks being left on the road surface. Again, categorically finding that either of those evasive measures were taken is not possible.[21]
[19] see Hong at pp 25, 26.
[20] see Hong at p 18.
[21] see Hong at pp 18, 26.

The Accused’s vehicle kept coming towards her. There was no evidence of the Accused appreciating what was, in plain prospect, such as him taking evasive action by ‘extreme steering or extreme braking’.[22] The Ford sedan was not equipped with an ABS braking system and so if the Accused had taken such evasive action, providing it was urgent, there would be some evidence of him having done so, such as skid marks, on the roadway.[23] Senior Constable Hong said that there were no ‘pre impact’ marks on the road ‘whatsoever’. Accordingly in all there was no physical evidence at the scene which could provide any insight into what might have caused the Accused to drive his vehicle onto the incorrect side of the road.
[22] see Hong at p 15.
[23] see Hong at p 15.
In the result the two vehicles collided. The point of impact was wholly within the carriageway for eastbound traffic, that is, the incorrect side of the road for the Accused’s westerly direction of travel. This driving by the Accused constituted a breach of the Australian Road Rules (SA) r 132. As I have indicated, I accept Senior Constable Hong’s evidence that the point of impact had to be where he indicated on the basis of that being the beginning of some of the scrape marks and skid marks.
Though characterised as a ‘head-on collision’, it is clear that the vehicles were ‘… slightly off-set …’ at impact.[24] The damage sustained to each vehicle would support that. The right-hand front corners of each of the two vehicles struck one another with such force that, in addition to extensive damage, the right front wheels of each of the vehicles were torn off. Given the centre of mass of the vehicles, the laws of physics then caused each of the vehicles to rotate. The deceased’s vehicle turned clockwise approximately 90 degrees, coming to rest on the northern side of the roadway facing south with its rear end mounted on the guardrail. The Accused’s vehicle rotated clockwise 360 degrees, coming to rest straddling the broken white dividing line of the carriageway for westbound traffic.[25] All of the fresh marks on the roadway identified by Senior Constable Hong, are attributable to the track of the slewing or rotating vehicles and the respective paths taken by the two wheels as they became detached from the vehicles in the impact and slid across the roadway.
[24] see Hong at p 18.
[25] see Exhibit P1 photographs.
Accordingly, I find that the Accused’s Ford sedan, for some inexplicable reason, crossed the double painted lines and when wholly on the incorrect side of the highway, collided with the Mazda sedan driven by Harvinder Kaur thereby causing her death.
Respective Cases
The Defence accept that the Accused was the driver of the Ford sedan and that by his driving he caused the death of Ms Kaur. The contention is that the Prosecution have not proved beyond reasonable doubt that the Accused’s driving was dangerous. Counsel for the Accused, Mr Lloyd, submitted in particular that the Prosecution have failed to prove either:
· that the driving was voluntary because what has been left open is that the Accused might have fallen asleep; or
· that if the driving was voluntary, that the Prosecution have failed to negative the possibility that some exculpatory event had occurred which robbed the Accused of the ability to control his vehicle such as, an animal straying onto the roadway into the path of his vehicle, the sudden onset of a coughing fit, or a threatening insect coming into the cabin of his vehicle.
Counsel, Mr Lloyd, contended that all those events had not been excluded as reasonable possibilities. In particular, he argued that the expert, Senior Constable Hong, did not completely reject the notion that the Accused fell asleep at the wheel.
I note here that the plea of involuntariness in the defence case is arguably in conflict with the admission that by his driving he caused the death of Mrs Kaur and also in conflict with the plea of guilty to count 2.
I turn to the Prosecution case.
First the Prosecution submitted that the fact that the Accused was the driver of the Ford sedan at the time of the collision and the fact that the collision was the cause of the death of Mrs Kaur, while not in dispute, were nonetheless, proved by the evidence.
In respect of the core issue, namely whether the driving was dangerous, Prosecuting counsel, Ms Cairney, contended that an array of objective circumstances established by the evidence, most of which I have particularised in the above findings, prove beyond reasonable doubt that the Accused’s driving was dangerous. She contended that the evidence demonstrated not only the objective dangerousness of the Accused’s driving, but also showed that the likely explanation for it was his gross inattention.
Prosecuting counsel, Ms Cairney finally submitted that the evidence would not support the Defence contention that it was reasonably possible that the Accused fell asleep at the wheel. Ms Cairney relied upon the evidence of Senior Constable Hong who said there were none of the usual indicators of that having occurred. Ms Cairney also drew attention to the evidence personal to the Accused which made it clear that on that Tuesday the Accused was not tired or fatigued and nor was the journey from Swan Reach to the point of impact arduous or time consuming.
Conclusion/Verdict
Though the character of the driving has been the focus of this case, it seems to me that the first issue which should be dealt with is the question of voluntariness.
The offence of causing death by dangerous driving can only be committed if the driving is a voluntary act, because a person who is driving whilst asleep is not doing so as a result of a conscious and willed act. Of course, a person who is tired and fatigued, and persists in driving in such a condition, may well be driving in a manner dangerous.[26]
[26] see Kroon v The Queen (supra).
Accordingly, if arising from the evidence, there is a reasonable possibility that the Accused fell asleep at the wheel and thereby drove into Mrs Kaur’s vehicle, then that could be a complete answer to the charge. This topic of the Accused falling asleep appears to have arisen from some of the questions I asked Senior Constable Hong. Nonetheless, it has become an issue. In the view I take about this, I need not deal with the concession made by the Accused, through his counsel, that there is no issue in relation to the first and third elements of the charge, or with the significance of the Accused’s plea of guilty to the alternative count, which of course assumes that the Accused drove voluntarily.
I conclude on all the evidence in this case that the Accused was driving the Ford sedan voluntarily at all relevant times. The evidence of the expert Senior Constable Hong was clearly to the effect that the usual signs of a driver being asleep at the wheel were not present. Senior Constable Hong said that what he discovered at the scene and reconstructed was not consistent with a driver having fallen asleep.[27]
[27] T28-35.
Further, the background circumstantial evidence does not offer any support to the suggestion that the Accused might have been fatigued and tired and so prone to have fallen asleep at the wheel. The Accused’s activities and work demands, on both the days preceding the day of the collision and the day itself, were not particularly arduous. He was not observed to be fatigued. Further, there was no involvement of alcohol or drugs which might induce drowsiness. Finally, the trip itself took place in the middle of the day and in itself, as I have said, was not arduous.
I find, therefore, that there is no reasonable possibility that the Accused was asleep at the wheel at the time of impact and therefore was driving involuntarily.
I turn to the remaining issues.
First, it is necessary to decide whether the Accused’s denial of having a memory of the collision is credible. In my view, the Accused’s responses to the questions about the mechanics of the collision, which were that he had no memory of them, were suspicious. I note however that his claim in evidence of having no memory of the collision is consistent with out of court statements, to the Police upon his arrest, to Lynne Breez[28] and to Dr Stefan Lammerink at the Royal Adelaide Hospital.[29] I would expect however, that a complaint of amnesia would feature more prominently in the medical records at the Royal Adelaide Hospital.
[28] see Declaration 11.
[29] see Declaration in Exhibit P9.
Accordingly, while I suspect that the loss of memory about the actual impact is a convenient avoidance tactic, I decline to make a positive finding that the Accused has been false in this respect.
I turn to the elements of the offence.
It is not disputed, but nonetheless, I find, that it is proven beyond reasonable doubt that the Accused was the driver of the Ford sedan which crossed over the double white lines and collided head-on with a Mazda vehicle driven by the deceased, Mrs Kaur. Again, though it is agreed, all the evidence establishes that the deceased, Mrs Kaur, died at the scene of injuries sustained in the collision and so the Prosecution have proved beyond reasonable doubt that by his driving the Accused caused the death of Harvinder Kaur.
In respect of the core issue, namely whether the Accused drove in a manner dangerous to the public, I give myself the direction I have earlier canvassed about the Accused’s lack of memory of the circumstances of the collision.
Although the Accused has offered no explanation of why his vehicle crossed onto the incorrect side of the highway, in disregard of the road markings, his counsel, Mr Lloyd, in his submissions has made a number of suggestions some of which are capable of exculpating the Accused. I pause here to indicate that hypotheses such as those put by not only counsel, Mr Lloyd, but also Prosecuting counsel, Ms Cairney, must, like inferences, have a foundation in proven evidence that is reasonably arise therefrom. Speculation and conjecture does not qualify.[30]
[30] see TNT Management Pty Ltd v Brooks (1979) 23 ALR 345 per Gibbs J at 349 and see also Caswell v Powell Duffryn Associated Colleries Ltd [1939] 3 All ER 722 at 733.
In my view, the submission of counsel that an animal straying onto the road in front of the Accused’s car, or a coughing fit seizing him, or a threatening insect entering the car, could have caused the Accused to drive onto the incorrect side of the road, are no more than speculation and conjecture. There is no acceptable evidence from which any of those hypotheses could arise.
Prosecuting counsel suggested that gross inattention was an explanation of the collision. Ms Cairney submitted that such a conclusion had support in all the evidence. Also canvassed with the Accused, in the course of his evidence, was the suggestion that upon passing the advisory sign, he might have instinctively driven to the right side of the road as is required in Taiwan, and in that way, came into collision with Mrs Kaur’s vehicle. The Accused, in his evidence, denied that such could have happened.[31]
[31] T66, 71, 72.
I consider that it is possible that the Accused drove to the right across the double lines as a result of either the gross inattention contended for by Prosecuting counsel or by reason of an instinctive reaction to bear to the right as was required in his home country. Amongst the evidence supporting these two causes is the fact that for an appreciable time the Accused drove his vehicle at the oncoming Mazda and though a collision was imminent, there was no sign whatsoever of any evasion. Neither of the two explanations I have just accepted as possible is exculpatory in this respect.
I also emphasise that there is no requirement that the Prosecution prove the cause of any dangerous driving.[32]
[32] see Arnold (supra) per Mullighan J at [45].
I now turn to the question finally of whether the driving by the Accused in this case was dangerous to the public within the meaning of s 19A(1) of the Criminal Law Consolidation Act. In this respect I conclude, on all the evidence which I have canvassed, that the Prosecution has proved beyond reasonable doubt that the Accused’s driving was dangerous in the sense that it constituted a grave departure from the standard of care required. In other words, it imposed a risk which any reasonable person in the position of the Accused would recognise as dangerous and exceeding the ordinary risks to be tolerated on the road. On a country highway, at close to the country speed limit, and in broad daylight, the Accused drove his motor vehicle into the path of an oncoming car.
Therefore, all the elements of the offence have been proven beyond reasonable doubt. My verdict is guilty.