R v Lenarczyk - [2015] SADC 95

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v LENARCZYK
Criminal Trial by Judge Alone
[2015] SADC 95
Reasons for the Verdict of His Honour Judge Beazley
25 June 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - GENERALLY
Trial by Judge alone - accused charged with one count of aggravated causing serious harm by dangerous driving - relevance of level of methylamphetamine as found in her blood - whether accused's driving was voluntary - whether fact of methylamphetamine, in combination with other driving behaviour, capable of rendering otherwise unexceptional driving dangerous - accused driving within speed limit, approaching an intersection controlled by traffic lights – she failed to notice lights had turned red and entered the intersection causing serious harm to another – whether driving amounted to aggravated dangerous driving or aggravated driving without due care and attention - contrast interstate equivalent statute where onus upon the accused to establish that collision was not attributable to the effect of a drug.
Verdict: Not guilty of charged offence but guilty of aggravated driving without due care and attention.
Criminal Law Consolidation Act 1935 (SA), s 19AAB, s 19A(3), s 19B(2), s 21; Road Traffic Act 1961 (SA) s 45; Road Traffic Act 1974 (WA) s 59(1)(b), referred to.
R v Pearse [2011] SASCFC 65; King v R [2012] 234 CLR 588; McBride v R [1966] 115 CLR 44; Aiken v R [2014] NSWCCA 213; R v Lambaditis [2015] NSWSC 182; Lodge v Magorian [2012] WASC 90; R v Greenham [1977] 25 MVR 495; R v Jaeschke [2007] SASC 321; Swan v R [2013] VSCA 226; Pfeiffer v R (unreported decision, Court of Criminal Appeal (SA) 11/12/90; R v Bliss (1993) 173 LSJS 255; R v Duryea (2008) SASC 363; R v Jongewaard [2009] SASC 346; Jiminez v R (1992) 173 CLR 572, considered.

R v LENARCZYK
[2015] SADC 95
Criminal Trial by Judge Alone
Introduction

Leah Jane Lenarczyk (‘the accused’) is charged, on Information, with the aggravated form of the offence of driving a motor vehicle in a culpably negligent manner, or in a manner dangerous to the public, thereby causing serious harm to another, contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (‘the Act’).
Upon arraignment, the accused pleaded not guilty to the charged offence. It is convenient to set out the particulars of the charge, as pleaded, and as developed in the prosecution opening as follows:
Statement of Offence
Aggravated Causing Serious Harm by Dangerous Driving (Section 19A(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Leah Jane Lenarczyk the 8 November 2012 at Salisbury Heights, drove a motor vehicle in a culpably negligent manner, recklessly or in a manner which was dangerous to the public, and thereby caused serious harm to Nickolas Drew Falco.
The circumstance of aggravation is that the accused committed the offence while a prescribed drug, namely methamphetamine, was present in her blood.
In the subject case, there is no evidence that the accused had consumed any alcohol; had driven at an excessive speed; had been driving erratically or in an irresponsible manner in the lead up to the collision. There was however evidence that she had driven through a red traffic light, thereby colliding with Nickolas Drew Falco; and that a sample of her blood, taken 2 hours after the collision, had disclosed methylamphetamine at a level of 0.54mg per litre; amphetamine at a level of 0.07mg per litre, and carboxy THC at a level of 11mg per litre.
The level of methylamphetamine was characterised, by an expert witness,[1] as a ‘middle level’ concentration. It’s relevance to the manner of the accused’s driving became the most significant issue in the trial. This case highlights the difficulties confronting experts in determining, what effect, if any, can be inferred from a level of methylamphetamine found in the blood of a driver. This has led the West Australian Parliament to place the ‘onus upon an accused to prove that a collision was not in any way attributable to the affect of a drug’.[2] No such provision exists in South Australia.
[1] Professor White, Transcript pgs 51 – 52.
[2] Road Traffic Act 1974 (WA) s 59(1)(b).
In the subject case there was no suggestion by either counsel that the accused’s driving was not voluntary.
Counsel for the Prosecution had opened on the basis that most of the Prosecution case had been agreed; explaining that it would ‘not be in contention that the collision had occurred; that the accused had caused the collision; and that Mr Falco was thrown across the intersection, and had sustained serious harm’.
Counsel for the accused explained that the issue was whether the Prosecution had established beyond reasonable doubt that the accused was driving in a manner that was dangerous to the public. This requires the Prosecution to prove that the manner of driving was so serious a breach of the proper management and control of her vehicle, ‘as to be in reality and not speculatively’, potentially dangerous to others.[3]
[3] King v R [2012] 234 CLR 588 at [32]; McBride v R [1966] 115 CLR 44 at [49]-[50].
It is necessary for the Prosecution to clearly identify the impugned manner of driving.
On the prosecution case the essence of the alleged culpably negligent driving was the accused’s defective lookout in failing to observe either Nickolas Falco, or the red traffic light prior to the collision; and that her failure to pay proper attention to her driving was caused by or contributed to by having ingested the drug methylamphetamine.
One of the issues in the trial, when contrasted with cases involving alcohol, was whether evidence of a level of methylamphetamine, without more, is sufficient to justify a finding of impairment of the accused’s driving. It is trite that effects of methylamphetamine are markedly different from those of alcohol.[4]
[4] Professor White at Transcript pgs 48 - 49.
I have put to one side the fact that methylamphetamine is an illicit substance, and any possible criminal behaviour by the accused in consuming it. I remind myself that this is not a Court of morals. The question in this case is whether the Prosecution has satisfied me beyond reasonable doubt that the accused drove in a culpably negligent manner thereby causing serious harm to Nickolas Falco.
·Trial by Judge Alone
On 20 May 2013, a Judge of this Court granted an application by the accused that the trial proceed before a Judge sitting without a jury pursuant to s 7 of the Juries Act 1927, (SA).
The trial commenced before me on 13 January 2015.
Mr A Kalali appeared as counsel for the Director of Public Prosecutions (‘the Prosecution’), and Mr J Richards appeared as counsel for the accused.
Necessity for Reasons
In a series of recent decisions, the High Court of Australia has stressed that sufficient reasons must be given by trial judges, and, indeed, Intermediate Courts, which properly explain the verdict.[5] Those reasons must include the principles of law applied by the Judge and the facts as found by the Judge. A trial judge, sitting alone, is not obliged to ‘express all the matters which necessarily have to be stated to a jury, unfamiliar with even the basic principles of law’.[6]
[5] BCM v R [2013] HCA 48; Douglass v R [2012] HCA 36 at [14]; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; and Aiken v R [2014] NSWCCA 213.
[6] Markou v R [2012] NSWCCA 64 at [19]; R v R, R, LJ [2008] SASC 35 and R v T, W A [2014] 118 SASR 382.
Legal Directions
I do not propose to detail all of the obvious directions of law. I do however remind myself of some of the fundamental directions which apply in every criminal trial, as follows: -
·The accused comes before this Court with the presumption of innocence in her favour. The law regards her as innocent unless and until her guilt on the charge has been proved by the Prosecution reasonable doubt.
·In assessing the evidence of any witness, I am entitled to accept the evidence of a witness in whole, in part, or not at all. Even if I were to find that a witness may be unreliable about some of the evidence, it does not follow that I must not accept other parts of the evidence of that witnesses.
·In this case certain persons said to be experts in particular fields have been called to give evidence. The ordinary rule is that witnesses may speak only as to facts and not express opinions. An exception to that general rule is that persons duly qualified to express an opinion in their particular area of expertise are permitted to give evidence of their opinions upon relevant matters within that field of expertise. The primary duty of experts in giving opinion evidence is to furnish the Trier of fact with criteria enabling it to assess the validity of the expert’s conclusions.[7]
·I remain however the sole judge of the facts and am entitled to accept or reject any such opinion evidence as I see fit. I will give such weight to the opinion of those expert witnesses as I think should be given having regard to the qualifications of the witness, the partiality or otherwise of the witness and the extent, if any, to which the witness’s opinion accords with such other facts as I find proved to my satisfaction.
·Only proof beyond reasonable doubt by the Prosecution can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of the charge, I must give the accused the benefit of that doubt and find her not guilty of it.
·The accused does not have to prove anything. When interviewed by the police, the accused denied the charged offence. The content of the interviews is evidence, and must be considered by me, albeit that the interviews were not given on oath, nor subject to cross-examination. At trial the accused elected not to give evidence. I remind myself that she has the right, at law, to remain silent in answer to the charge, leaving it to the prosecution to satisfy me of all of the elements of the charge, if it can. I have accordingly drawn no inference adverse to her in consequence of her election not to give evidence on oath.
·A view was conducted of the scene of the collision at the request of and in the presence of counsel. It was solely for the purpose of enabling the Court to better understand the evidence.
[7] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 729; R v Lambaditis [2015] NSWSC 182; Honeysett v R [2014] HCA 29.
Elements of the charged offence
A person commits the basic form of the charged offence, if he or she drives a motor vehicle in a culpably negligent manner or in a manner dangerous to the public and thereby causes serious harm to another person.
The basic offence contains three elements, each of which must be proved beyond reasonable doubt, by the prosecution.
The elements of the basic offence are as follows:
·Firstly, that the accused was the driver of the motor vehicle which collided with Nickolas Falco.
This element was not in dispute at the trial.
·Secondly, that the accused drove that motor vehicle in a manner which was culpably negligent or which was dangerous to the public.
This element was the significant issue in the trial, and was disputed by the accused.
·Thirdly, that said the driving of the accused caused serious harm to Nickolas Falco.
In ss 19AAB and 21 of the Act, ‘serious harm’ is defined as:
(a)    harm that endangers a person’s life; or
(b)    harm that consists of, or results in, serious and protracted impairment of a physical or mental function; or
(c)    harm that consists of, or results in, serious disfigurement.
While the manner of driving was in dispute, there was no dispute that Nickolas Falco suffered ‘serious harm’, as defined, in the collision.
·The aggravated form as charged
If the Prosecution proves each and every of the first three elements, then the accused is guilty of the basic offence. However before the accused can be found guilty of the aggravated form of the offence, as charged on the Information, the Prosecution must prove, beyond reasonable doubt, the circumstance of aggravation, namely that, at the time the serious harm was caused to Nickolas Falco, methylamphetamine, a prescribed drug, was present in the accused’s blood. See R v W [2015] SASCFC 56.
It was not in dispute at the trial that the accused had, inter alia, 0.54 mg of methylamphetamine per litre in her blood. Accordingly, if the Prosecution has proved each of the first, second and third elements beyond reasonable doubt, it follows that the accused is guilty of the aggravated form of the offence, as charged.
It is convenient to further explain the legal concept of driving in a manner dangerous to the public for the purpose of the second element of the charged offence; and to discuss any alternative charge.
·Driving in a manner dangerous to the public
I repeat that, in respect of the second element, the Prosecution must prove that the manner of driving of the accused was such a grave departure from the standard of care expected of a driver that it imposed a risk which any person in the position of the accused would recognise as a real danger to the public.[8]
[8] See King v R [2012] 245 CLR 588 at [32]; R v Jaeschke [2007] SASC 321; Lodge v Magorian [2012] WASCA 90; and Aiken v R [2014] NSWCCA 213.
In McBride v R (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 R (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)
In R v Jaeschke,[9] Doyle CJ said; at [33] – [34]:
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 R v Duncan, which appears as a note to the report of the decision in R 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)
[9] [2007] SASC 321.
As to this question of driving in a manner dangerous, the level of methylamphetamine is only relevant if the Prosecution establishes that the accused’s capacity to drive her motor vehicle was diminished. The fact that it is an illicit drug is irrelevant. See Swan v The Queen.[10]
[10] [2013] VSCA 226.
In R v Hochbaum,[11] the Court of Criminal Appeal said that, ‘the evidence of a [drug] reading was relevant as one of a number of circumstances which all must be considered as a whole in assessing whether the accused’s driving imposed a risk on others, which any reasonable person would recognise as a real danger to the public’.
[11] [2004] SASC 230; See also Kroon v R (1991) 55 SASR 476; R v Leaf-Milham (1987) 47 SASR 499.
In R v Greenham,[12] Cox J said:
So what the jury will be looking for in a prosecution under s19a is something potentially dangerous in the manner of driving itself or because of the particular circumstances surrounding the driving. The test in this respect is an objective one; whether the defendant realised that he was driving dangerously is immaterial. If, in the jury’s judgment, his driving was dangerous, the next question will be whether it caused the death or bodily harm alleged in the information. It need not have been the sole cause; a substantial cause will do: R v Mayne (1975) 11 SASR 583.
Typically the prosecution will lead evidence about the way the defendant drove his car on the occasion charged, and they may also lead evidence about any impairment of the defendant’s physical or mental faculties as tending to explain why he drove as he did. Being affected by alcohol will not in itself amount to dangerous driving, but being unable to exercise effective control of a vehicle because of the amount of alcohol the driver has drunk may well support a finding of dangerous driving. Evidence that a defendant was affected by alcohol will generally be admitted, therefore, as relevant to the issue whether he was driving dangerously: R v McBride [1962] 2 QB 167; Smith v R [1976] WAR 97; R v Leaf-Milham (1987) 47 SASR 499; R v Cornish (1988) 48 SASR 520, 6 MVR 419, Pfeiffer v R (CCA (SA), King CJ, Cox and Olsson JJ, No 680 of 1990, 11 December 1990, unreported). In Pfeiffer, King CJ said:
To drive a motor vehicle on a road so affected by liquor as to be incapable of exercising effective control of the vehicle is itself driving in a manner dangerous to the public.
Thus, if the evidence of incapacity is clearly established, the driving may be characterised as dangerous even though the way the defendant drove his car, viewed objectively, appeared unexceptionable. (my emphasis)
·Alternative charges
[12] [1997] 25 MVR 495 at [497] – [498].
Section 19B(3) of the Act provides that if I am not satisfied that the accused is guilty of the charged offence, but I am satisfied that the accused is guilty of a ‘less serious offence’, then I may bring in a verdict of guilty in respect of that less serious offence.

The alternative statutory offence, pursuant to s 19B(2) of the Act, is that of aggravated driving without due care or attention contrary to s 45 of the Road Traffic Act.
Relevantly s 45(3) of that Act provides that it is an aggravating factor for an accused to drive without due care and attention, and thereby cause ‘serious harm’ to a person. In the latter Act, ‘serious harm’ is defined in slightly different terms, but relevantly includes ‘serious and protracted impairment of a physical or mental function’, or ‘is likely to result in serious disfigurement’.
Overview of the facts
At or about 4.05pm on Thursday 8 November 2012, the accused was driving her motor vehicle, a white Ford Station Wagon, in an easterly direction along The Grove Way, approaching its intersection with Stanford Road at Salisbury Heights. The three passengers in her motor vehicle, were her three children aged 6, 8 and 10 years, each of whom had been collected by her from the Angle Vale primary school. The weather was clear. The Grove Way surface was dry, and the visibility was ‘excellent’.
Traffic lights regulated the flow of vehicles at the point where The Grove Way, intersects with Stanford Road on its northern side, and Gateway Drive on its southern side. The Grove Way is a major road. For east bound traffic, it consisted of two east bound lanes; an east bound bicycle lane, and a left turn slip lane for traffic turning into Stanford Road.
There was a pedestrian crossing which spanned The Grove Way, at that intersection, allowing for north bound and south bound pedestrian access. In the immediate vicinity of the intersection was a sign declaring a maximum speed of 60 kilometres per hour for all traffic on The Grove Way.
Nickolas Falco was aged 12 years as at the date of the collision. He had travelled on his bicycle from school to Stanford Road where it intersected with The Grove Way. He was ‘in a bit of a rush to get home’. While he waited for the pedestrian lights to change to green, so that he could ride his bicycle in a southerly direction on the pedestrian crossing, the accused was driving her vehicle towards that intersection, in the right hand lane on The Grove Way, at a speed of approximately 55kph to 60 kph.
There was no other vehicle ahead of the accused’s vehicle, in that right hand lane; however a vehicle, driven by an off duty police officer, Sergeant Richard Norris, was travelling in that lane at an unspecified distance to the rear of her vehicle.[13]
[13] Statement of Sergeant Norris, Ex P9.
Vehicles in the left hand lane on The Grove Way were slowing down or had stopped at those lights. The question as to when it was that the lights for traffic travelling in the accused’s direction had turned red, was a live issue at the trial. As to the intersecting side streets, at least two vehicles were stationary on Stanford Road, facing in a southerly direction, while on Gateway Road; one vehicle was stationary, facing in a northerly direction.
A number of vehicles were travelling in a westerly direction on The Grove Way, approaching the intersection with Stanford Road. One such vehicle, driven by Dorothy Ada Davis, was stationary at the intersection, with its right indicator light operating, indicating an intention to turn across traffic to its right, so as to enter Stanford Road.
Much of the evidence in the trial was directed to the timing of the light changes at the intersection. While there was no dispute that Nickolas Falco, on his bicycle, did move from the standing position in southerly direction along the pedestrian crossing, a curious feature of the evidence is that the vehicles in Stanford Road, and Gateway Drive had not moved from their stationary position at the time of impact between the accused’s motor vehicle and Nickolas Falco.
This raises the question, notwithstanding Nickolas Falco’s statement, as to whether the pedestrian light had turned green or whether he simply anticipated that it would turn green and moved off as he was anxious not to be home late.
I make no criticism of him at all. There is no doubt that at the point of impact, the light for the accused was red.
The accused travelled at a steady speed, entering the intersection contrary to the red traffic light. In so doing her motor vehicle collided with Nickolas Falco causing him to suffer a broken right leg; abdominal injuries, including a collapsed lung; a broken left wrist; skull fractures and numerous lacerations to his face. I repeat that there was no dispute that the victim had suffered ‘serious harm’, as separately defined in the Act, and in the Road Traffic Act.
It was common ground that the accused, while travelling in the right hand lane towards the intersection, could not have observed Nickolas Falco while he was stationary at Stanford Road; nor when he was moving across the pedestrian crossing as her view was blocked by two vehicles which had stopped in the left hand lane. Indeed the accused could not have seen him until the point of impact.
The principal issue
Mr Kalali described the issue in the trial as being whether the driving by the accused constituted driving in a manner dangerous to the public. The essence of the Prosecution case was that the accused was driving with a grossly defective lookout for about 8 seconds, as she should have observed an amber light for about 4 seconds and a red light at the intersection for at least 4 seconds. This would have placed her vehicle at a distance of 120 metres from the intersection when the amber light first appeared. The Prosecution asserts that the level of methylamphetamine in the accused’s blood was so high, that on the one hand, it provides, an explanation for her lack of attention, and, on the other, evidences an incapacity to exercise effective control over her motor vehicle.
Amongst the relevant questions are:
·At what distance from the intersection was the accused’s vehicle when the traffic lights for vehicles travelling in an easterly direction had turned red.
·Irrespective of the methylamphetamine in her blood, was her defective lookout in failing to see the red light so defective that her driving can be characterised as dangerous?[14]
·Whether the Prosecution has satisfied the Court beyond reasonable doubt that the methylamphetamine, had impaired her driving of her vehicle at the point of collision? or;
·Whether driving with that level of methylamphetamine is, in the absence of excessive speed or erratic driving, sufficient to establish dangerous driving? or;
·Whether that level of methylamphetamine in combination with inattention, is capable of rendering, otherwise unexceptional driving, as being dangerous?[15]
[14] R v Jaeschke [2007] SASC 321 at [73].
[15] Lodge v Magorian [2012] WASCA 90; Pfeiffer v R (unreported decision) Court of Criminal Appeal (SA) 11/12/90, BC 9000156.
Overview of the evidence
The evidence before the Court was directed to two distinct issues namely the collision itself on the one hand, which includes evidence as to the manner of driving of the accused and the traffic flow; and on the other hand, the relevance if any, of the methylamphetamine found in the blood of the accused.
The accused elected not to give evidence in this Court. The accused has the right to decline to give evidence, and because that is her legal right, I do not draw any inference adverse to her or the case put forward by her.
I will deal with the evidence separately in respect of those distinct issues.
However there were some difficulties occasioned by the way in which the evidence proceeded on the issue of the collision.
·The collision
Statements made by 13 witnesses, which included the statements of Nickolas Falco; other drivers and witnesses to the collision; police officers, including the detailed statements of Sergeant Lauren Cox of the Major Crash Investigation Unit, and the interviews of the accused were all admitted into evidence with the consent of the respective counsel.
They were admitted on the basis that they constituted the evidence that those witnesses would have given, had they respectively been called and given oral evidence. I have no doubt that each of the authors did their best to recall the events of that day. Some of the differences in their evidence can be explained by their respective positions at or near the intersection.
I have approached with some caution the estimates of speed and time. It is difficult for any witness to accurately estimate those matters.
With the benefit of hindsight, it was unfortunate that at least some of the witnesses were not called so as to clarify some of their evidence. Most of the witness statements did not make clear where they were respectively positioned when the traffic lights turned red for east bound traffic, and, significantly, where the accused’s vehicle was positioned at that time.
Some other statements were tendered so as to establish a chain of evidence. They included those of police officers Aaron Greatorex, and Mark Hodgetts, deposing to the obtaining of blood tests.[16]
[16] Exhibits P13; P14; P15; P16.
There is no need to refer to the latter type of evidence.
The Prosecution did however call two witnesses to give oral evidence on this topic. They were respectively Sergeant Sheldon Lovell, who was attached to the Major Crash Investigation Unit; and Ian Ray, the Senior Technical Officer in the Traffic Operations Unit of the Department of Transport.
·Synopsis of the evidence
I set out a synopsis of the evidence in respect of the collision.
I briefly mention the evidence of Sergeant Lovell. There was no dispute as to his evidence. He had attended the scene, 2 hours after the collision.
He prepared a scale plan which detailed the point of the collision. He observed no tyre marks, consistent with braking, at that point. He also detailed the description of the subject collision scene, noting that for east bound traffic on an approach to the intersection with Stanford Road, The Grove Way consisted of two east bound lanes; an east bound bicycle lane; and a left turn slip lane for traffic turning onto Stanford Road. He noted that the traffic lights were operating for traffic on The Grove Way and that there were two pedestrian crossings which spanned The Grove Way allowing for north bound and south bound pedestrian access. In the vicinity of the collision scene a signed speed limit of 60kph applied for all traffic on The Grove Way. He took various photographs of the accident scene including a photograph of the view available to east bound vehicle traffic on approach to the traffic lights.
·Sergeant Richard Norris,[17] an off duty police officer, was travelling in an easterly direction on The Grove Way, in the right hand lane, at some unspecified distance behind the accused’s vehicle.
It is unfortunate that the statement of Sergeant Norris does not detail how far his vehicle was behind the accused’s vehicle, nor when it was that he had noticed that the traffic light had turned red. He does make it clear that the collision with Nicholas Falco had occurred ‘as he drew to a stop and was almost stationary’, but makes no reference to the accused’s vehicle at all.
He deposed:
I began slowing for the traffic lights at the intersection of the Grove Way and Stanford Road as I assumed they were in the process of changing to red. (my emphasis). I was in the right hand lane and slowing down preparing to stop and was approximately 100 metres from the intersection. As I drew to a stop I was almost stationary when something ahead of me caught my eye. Initially I thought it was a large piece of paper that had risen up into the air from the road but very quickly realised it was in fact a person … I assumed that this person had been involved in some collision although at the time I had no idea exactly what occurred. (my emphasis)
·Dorothy Ada Davis,[18] was travelling west on The Grove Way, approaching the intersection of Stanford Road when she noticed traffic on The Grove Way travelling in an easterly direction, slowing down on their approach to the traffic lights.
[17] Exhibit P9.
[18] Exhibit P6.
She deposed:
the traffic lights must have been showing a red light because I had stopped in the right turn lane before the white line. I cannot specifically remember the moment I looked at the lights; however they must have been red because the oncoming traffic (east bound) was slowing on approach to their lights. She remembered two oncoming (east bound) vehicles slowing down. She said vehicles waiting to turn right from Stanford Road hadn’t moved at that time when she heard a loud bang. She looked in the direction of vehicles travelling (east bound) on the Grove Way and saw something in the air coming towards her. She said the white vehicle travelling (east bound) on the Grove Way went through the intersection at the same time as I saw a person in the air.
I can only assume that (east bound) traffic on the Grove Way had either a red or amber light. I couldn’t see the traffic lights from where I was situated for that direction of traffic. I was paying attention to traffic on Stanford because I know the right sequence well. (my emphasis)
·Michael Francis Guerin,[19] was the driver of a vehicle which was stationary in the left of two traffic lanes on Stanford Road intending to travel in a westerly direction. He deposed:
[19] Exhibit P7.
I had been stationary at the traffic lights for about 2 to 3 minutes when I saw the traffic travelling east on the Grove Way stop at the intersection … the traffic in the left straight ahead lane had stopped at the intersection. I can’t recall the cars that were stopped in the left lane. After I saw the cars stop on the Grove Way I thought the lights facing me were about to change to green so I was preparing to move off. About 2 to 3 seconds after I saw the cars in the left lane stop, I saw a white EL Ford Falcon Station Wagon travelling east on the Grove Way enter the intersection. I hadn’t seen the Ford Falcon Station Wagon prior to it entering the intersection. At about the same time that I saw the Ford Falcon, I heard a thudding sound and saw a child rotating in the air … I never saw what happened to the Ford Falcon Station Wagon. I saw it continue through the intersection, and it never appeared to brake at all. I didn’t see the front of the vehicle dip as though it was braking heavily and I never heard any skidding from its tyres or any warning horn. I don’t know where the child came from; I hadn’t seen him prior to having seen him in the air. Very shortly after I saw the child in the air the traffic lights facing me changed to green. I couldn’t say exactly how long after I saw the child the lights changed to green but it was no more than a few seconds. (my emphasis)
·Joshua Cliffe,[20] and his passenger Shane Cowey[21] were also stationary on Stanford Road waiting to turn left onto The Grove Way. Mr Cliffe remembered a white Toyota 4WD in the left lane on The Grove Way was stationary. He assumed that the lights for east bound traffic were red. He saw three other vehicles, but made no mention as to whether they were stationary or still moving. (my emphasis) He put his vehicle into first gear and was about to move off when he saw Nicholas Falco ride his bicycle on the pedestrian crossing. He saw the accused’s vehicle travel through the intersection in the right lane. He did not hear any brakes.
[20] Exhibit P4.
[21] Exhibit P5.
·Greer Louise Gabrielli,[22] had been travelling east on The Grove Way in the left traffic lane. When she was approaching the intersection with Stanford Road she was following a white vehicle and could recall another vehicle ahead of that vehicle.
[22] Exhibit P8.
She deposed:
Those vehicles were already stopped, due to the traffic lights showing red. The traffic lights had been red for the whole time I was approaching the intersection. I was about two or three car lengths behind the white car in front of me. The car in front of the white car was the first vehicle at the lights and had already stopped. I had almost stopped behind the white car in front of me when I noticed a white Ford Station Wagon in the right lane travelling east. The Ford was travelling at about to 60 to 65kph. I first saw the Ford in my rear view mirror; it was travelling too fast to stop at the red traffic lights. I knew then there was going to be a collision. I thought the vehicles that were about to turn out of Stanford Road were going to be involved. I then saw a boy riding from my left to right across the road on the Grove Way. I am pretty sure I saw the boy on the north western side of the intersection riding his bike from left to right. My vision was blocked slightly because of the vehicles in front of me but I could see him through the gaps … the white Ford did not brake prior to the collision, it went straight through the intersection at the same speed. I didn’t hear any braking noises or car horn sounding. (my emphasis)
·Elliot Cameron McDonald,[23] is the Senior Vehicle Examiner of the Major Crash Investigation Section. He examined the accused’s Ford motor vehicle following the accident. He carried out a short road test during which the vehicle braked, steered and performed well. He said that apart from the poor condition of the right rear tyre he had formed the opinion that the vehicle had been in reasonable condition prior to the collision and could find nothing mechanically wrong that would have contributed towards or caused the collision.
[23] Exhibit P11.
·Ian Ray,[24] is a Senior Technical Officer with the technical knowledge to speak on behalf of the Department of Planning Transport and Infrastructure in relation to traffic lights, their sequencing and timing in South Australia; and in particular at the intersection of the Grove Way, Stanford Road and Gateway Drive at Salisbury Heights at the time of the subject collision.
[24] Exhibit P26.
He explained the various phases for the traffic lights at the subject intersection. A plan of The Grove Way intersection detailing the various traffic control devices was tendered as part of his evidence.
While he was cross-examined about faults observed in the detectors at about one hour after the collision. I am satisfied that they were operating properly at the time of the collision.[25]
[25] Transcript p 30 - 40.
He explained that the sequences were governed by demand, and that one would need to ascertain whether a vehicle had arrived first on Stanford Road or Gateway Drive during any cycle, or alternatively whether and if so when, it was that the pedestrian button was pushed.
Mr Ray said that, consistent with its major road status, the ‘A’ phase was for traffic travelling east and west on The Grove Way.[26]
[26] Transcript p 35 - 42.
Its green light could operate from a minimum of 5 seconds up to several minutes.
When it changed, the amber light would remain for 4 seconds. The red light would then appear for 2 seconds before the green light would be activated for the traffic on Gateway Drive; Stanford Road; or the pedestrian crossing.
He explained that in the ordinary course of events, the next phase after The Grove Way phase, is for traffic on Gateway Drive wishing to travel straight to Stanford Road or right onto The Grove Way.
Following Gateway Drive, the next phase is for traffic on Stanford Road. If however there was no traffic on Gateway Drive or the traffic on Stanford Road had arrived much earlier than that on Gateway Drive, then the sequence would go straight from The Grove Way to Stanford Road.
If a pedestrian pushed the button to use the pedestrian crossing on the Stanford Road side it would have had the effect that the pedestrian light would turn green as would the light for traffic on Gateway Drive, but not for Stanford Road.
In the subject case, I accept that the light for east bound traffic on The Grove Way would have turned to amber for 4 seconds before turning red. Thereafter the lights would have been red for 2 seconds before the relevant other lights turned green. The pedestrian light would have come on only if it was pressed by Nickolas Falco. If he did that in time, the light for the Gateway Drive traffic would have turned green, but the Stanford Road light would have remained red. For Stanford Road light to be green, neither the Gateway Drive nor the pedestrian light could have been green.
·Dr Andrew Morris,[27] is the Orthopaedic Registrar at the Women’s and Children’s Hospital. He detailed in a report dated 12 March 2013 the serious injuries sustained by Nickolas Falco including a compound right tibia and fibula fracture, a fracture of the left distal radius and ulna fractures of the facet joints T2 and T3 and right rib fractures together with a right scapula fracture, multiple skull fractures and a frontal brain contusion.
[27] Exhibit P25.
·Sergeant Lauren Louise Cox,[28] is a police officer attached to the Reconstruction and Technical Examination Unit of the Major Crash Investigation Unit. She prepared a 33 page report in respect of the subject motor vehicle collision. She noted various matters which may have impacted upon the quantification of the approximate speed of the accused’s vehicle when calculated in accordance with established equations. Amongst the difficulties was whether Nickolas Falco’s post impact travel may have been hindered by his contact with another vehicle. The speed range which she calculated was therefore most likely an under estimate of the true speed of the accused’s vehicle. Making allowance for those matters as best she could Sergeant Cox concluded that the minimum speed of the accused’s vehicle at the point of collision was between 46kph and 55kph.
[28] Exhibit P10.
·Nickolas Drew Falco,[29] was aged just 12 years and a student in Grade 7 at the date of the collision. He deposed to waiting with his bike at the traffic lights at The Grove Way intending to travel south to Gateway Drive. He waited for the lights to change and said that he had seen ‘a green man’ which meant that he could cross. Prior to crossing The Grove Way, he had answered a mobile phone and had hung up before crossing the road. He initially could not recall whether he was riding or walking alongside his bike but later remembered riding his bike. He couldn’t remember anything of the collision other than seeing a car come at him from his right. He deposed to sustaining a broken right leg, abdominal injuries including a collapsed lung, a broken left wrist, skull fractures and numerous lacerations to his face.
[29] Exhibits P2 and P3.
·Senior Constable Courtney Louise Jaensch,[30] is also attached to the South Australian Police Major Crash Investigation Unit. Constable Jaensch conducted a Record of Interview with the accused at the Elizabeth Police Station at 7.05pm on the day of the collision.
[30] Exhibits P17 and P18.
She explained that she had cars in front of her and behind her, and that all were travelling at about the same speed.
She said she did not see a car on her left slowing down because she was alongside of it, and ‘could see no brake lights or anything’.
The accused was asked further about the collision, and said:
A      Well I was picking up my kids from school, taking them home and driving normal speed and it was just there. The lights were green, just stepped out in front of the car that was next to me. I had no time to brake, nothing … the young boy stepped out in front of the car next to me and I didn’t have any time to brake at all.
Q      Lights, the lights were green, you were travelling at the speed limit, you said the boy stepped out from in front of the car in the lane next to you; you didn’t have a chance to brake. Did you hit the boy?
A      Yep …
Q      So assuming the kids go to school every day, do you take that route daily?
A      Yes it’s only been the last week because the schools …
Q      The last week, yeah. Aside from this last week how often do you drive on The Grove Way?
A      Never.
Q      Never?
A      Never really been in that area before …
Q      And you were in the right lane.
A      Yep.
Q      So you travelling up The Grove Way, you were in the right lane of two, what could you see, what was the traffic like.
A      There was a fair bit of traffic.
Q      Were the cars around you stopped, were they travelling, were they going the same speed as you?
A      Same.
Q      Every, all the cars are travelling?
A      There was a guy that stopped in a Ute. The car before me as soon as he got out I said it was green wasn’t it? He said yes.
Q      And you were travelling at sixty, you said?
A      Yeah just a bit under, probably a little bit under …
Q      How far were you behind the car in front of you?
A      Oh um not that far?
Q      Can you give me a distance?
A      I don’t know, I don’t know the distances.
Q      In car lengths.
A      No probably, I don’t know, a car length which I thought the traffic was pretty tight.
Q      Yep and was that the Ute you mentioned earlier?
A      Yeah, yep.
Summary of the evidence

I make no criticism of counsel for the decision to tender the statements. At the trial the focus was upon the relevance of the level of methylamphetamine.
However as the trial proceeded the tender has caused significant difficulties.
As will be plain there were some marked differences in the evidence of witnesses, particularly as to timing, and short comings in the evidence as to the placement of the accused’s vehicle, in respect of the intersection at various times.
These difficulties would undoubtedly have been overcome had the witnesses been called to give oral evidence.
It is one thing to ‘agree’ the evidence or more correctly to ‘agree’ certain matters of fact. It is quite another thing to simply tender the evidence on this basis that this is what a witness would say if called.
In this case the parties might have agreed as a fact that the green pedestrian light had illuminated prior to Nickolas Falco moving off. If that were the case then the duration of the amber light and the red light facing the accused could have been agreed.
Nickolas Falco’s statement was clear that the pedestrian light had turned green.
This was not an agreed fact.
It does not sit easily with some of the other evidence.
Because he was not called as a witness, it was not put to him that he was mistaken, or suffering from the concussion received by him in the collision. If it had been put to him then he would have had the opportunity to comment upon it. I have been deprived of any response from him. Fairness dictates that the witness should have had the opportunity to explain his recollection.
While it may be open to suggest that a forensic decision was made by counsel for the accused not to cross-examine Nickolas Falco, so as to be bound by his statement, there was no agreement as to the facts and his statement must be considered on the same basis as that of other witnesses. It is no one’s fault, however I will need to do the best I can with the evidence before me.
·The relevance of methylamphetamine
As to the level of methylamphetamine and possible effect upon the accused’s driving at the time of the collision, a statement of the Forensic Scientist Timothy Scott was tendered by consent.
The Prosecution called oral evidence from Professor Jason White, an undoubted expert in the fields of Pharmacology and Toxicology, and as to the role of alcohol and drugs in road accidents. Two reports of Professor White expressing his opinion as to the effect of the methylamphetamine upon the accused’s driving were tendered as part of his evidence in chief.
The sole witness called for the accused was Dr Michael Robertson who is also an acknowledged expert in Forensic Toxicology, and the effect of methylamphetamine upon a driver of a motor vehicle. A report prepared by him was tendered as part of his evidence in chief.
·Synopsis of the evidence with respect to methylamphetamine
I set out a synopsis of the evidence as to this issue of the accused’s level of methylamphetamine.
·Timothy Lawrence Scott[31]
[31] Exhibit P12.
Mr Scott is a Forensic Scientist who analysed a blood sample taken from the accused. The results obtained by Mr Scott were that:
·Alcohol was not detected in the blood.
The blood did however contain methylamphetamine at a level of 0.54 mg per litre; amphetamine at a level of 0.07 mg per litre; and carboxy THC at a level of 11 mg per litre.
·None of the drugs THC, morphine, cocaine, benzodiazepines nor other common basic drugs were detected in the blood.
Mr Scott expressed the opinion that:
·Both amphetamine and methylamphetamine are sympathomimetic phenethylamine derivatives with prominent central stimulant activity.
·Amphetamine is frequently abused for its stimulant affects.
·The presence of amphetamine in the blood may be due to the metabolism of methamphetamine to amphetamine or from the administration of amphetamine itself.
·Carboxy THC is the major metabolite of THC in blood and may be detected for several days after cannabis use.
·Jason Mark White.[32]
[32] Exhibit P29.
Professor White is the Professor of Pharmacology at the University of South Australia. He is undoubtedly an expert in the field of the effects of various drugs including methamphetamine and amphetamine. He explained that the effects of methamphetamine include physiological changes such as increased heart rate, body temperature and blood pressure and the dose is relatively high than marked increases in both can be observed. Relevantly he noted that fatigue is diminished by methamphetamine and that both mental and physical performance may be improved as a result of administering the drug. Adverse effects of methamphetamine, included agitation accompanied by aggression and even psychosis. Agitated and psychotic behaviour is often accompanied by symptoms of rapid speech, restlessness, labile mood, teeth grinding and repetitive behaviour and tremor.
He explained that the peak effects of methamphetamine occur within a few minutes of intravenous administration or smoking and about 3 hours after oral administration. The normal duration of the effect is 4 to 6 hours but may persist for longer. He noted that the accused, some 2 hours after the collision, had a concentration of 0.54mg/L.
He expressed the opinion that it was likely that the concentration of the methamphetamine was higher at the time of the crash, but it was not possible to be precise about the concentration at that time as the time and method of consumption were unknown. He thought however that it was likely that the concentration was around 0.65mg/L.
He described such a concentration as ‘middle level’. It was ‘not a very high concentration’.
He noted that a concentration around that level is sufficient to produce significant adverse effects in some people which includes agitation and possibly psychotic symptoms. He noted that amphetamine is a metabolite of methyamphetamine and has the same effects. Because it was present at a low concentration level it would have only had a small effect additional to that of the methamphetamine.
He expressed the opinion that low concentrations of methamphetamine may have relatively little effect upon driving and may indeed have potential to improve driving performance.
He said that a positive effect of methylamphetamine was ‘to increase alertness and associated with that is a decrease in fatigue’. It is sometimes used to reverse the effects of fatigue.
High concentrations could have an adverse affect including increased confidence in risk taking, increased arousal leading to agitation and hyperexcitability, irrational thinking and paranoia. He opined that if those effects were present then a person’s perception of their road environment would be markedly altered, their driving behaviour apparently irrational and erratic and there may be an increase in speed and other manifestations of risk taking.
Professor White explained that there ‘would have been some effects’ from methylamphetamine at a level of 0.54mgs per litre’. But he identified those effects, as increased alertness, self confidence and risk taking which would occur’. However he conceded that ‘it’s hard to be absolutely precise about the effects’.
He referred to studies which involved persons pulled over by the police. He conceded that those incidents involved individuals whose driving was so bad as to bring them to the attention of the police, in contrast to the apparently unexceptional driving of the accused.
He explained that crashes involving drivers under the influence of methamphetamine are characterised by the affected driver drifting out of the lane of travel or off the road, travelling a high speed, moving into oncoming traffic, and crossing a road into oncoming traffic. He also referred to the possibility that the driver may concentrate on other things rather than upon her driving.
As to cannabis, Professor White deposed that usually concentration of THC reaches a peak within minutes after cannabis is smoked. He said that the subjective and behavioural effects of cannabis last for about 4 hours after smoking. He noted that the blood sample from the accused showed the presence of carboxy THC but not THC itself and because the blood sample was collected 2 hours after the collision it can be concluded that the driver was not under the influence of cannabis at the time of the collision.
Professor White conceded that he had received no information as to the observations of police or witnesses as to any outward signs suggestive of the effects of methamphetamine either before or after the collision. A question would have arisen as to the voluntariness of the accused’s driving had, in fact, she been suffering from paranoia.
·Michael Robertson.
Dr Robertson is a Forensic Chemist and a Clinical Forensic Toxicologist. He has written extensively upon the effect of drugs in drivers in road traffic crashes and is clearly an expert in that field. [33]
Dr Robertson noted that when tested for alcohol following the accident the accused was found to be negative.
Dr Robertson, consistent with the opinion of Professor White, described methlamphetamine as a synthetic central nervous system stimulant. He explained that its ‘positive’ effect, when consumed, included improved alertness and concentration, as contrasted with the effects of alcohol.
He explained that the ‘negative’ effects include ‘sweating’, dilated pupils, elevated blood pressure, nausea, restlessness, confusion and even psychosis at high doses.
He said that there were no indications from either the police or lay witnesses of any ‘indicia’ or signs consistent with methylamphetamine intoxication.
He noted that the accused was in the presence of police officers for about 2 hours. Those officers were trained officers who took the compulsory blood tests. But not one mentioned any sign of sweating, irritability, restlessness, aggression or anything suggesting fatigue.
Dr Robertson explained that, unlike alcohol, the concentration of methylamphetamine and its affect upon an individual’s driving ability ‘cannot be reliably predicted based on drug levels alone. Factors such as the dose of the drug; whether taken orally, smoked or intravenously, the frequency of drug use and the associated tolerance of the individual to the effects of the drug will all influence if and to what extent an individual may be impaired.
As such, drug concentrations per se cannot be used to predict drug-related effects or demonstrate impairment, but often need to be accompanied by additional evidence such as driver behaviour and/or behavioural observations specific to the drug’.
He was critical of Professor White’s reliance on the concentration of methylamphetamine in the accused’s blood alone. He noted that ‘the subject driving involved none of the characteristic behaviour, of a driver drifting out of a lane of traffic; travelling at a high speed or crossing a road into oncoming traffic’. He noted also Professor White’s opinion that ‘symptoms characteristic of the presence of a high level of methylamphetamine such as agitation, increased risk-taking, irrational thinking and paranoia may have been present. She also may have been experiencing hallucinations’.
Dr Robertson repeated that no one, whether police officers, or medical staff at the Lyell McEwin Hospital made any such observation. Similarly there was nothing in the video interview consistent with those symptoms.
[33] Exhibits D28 and D30.
Submissions of Counsel
I have taken into account the whole of the submissions made by both counsel. I do not propose to detail each submission but will set out a synopsis of only some of the main points made by them.
·The Prosecution
Mr Kalali, counsel for the Prosecution, submitted that the Court ought to find on the whole of the evidence that the accused had driven her vehicle through the intersection notwithstanding that an amber light had been operating for about 4 seconds, and a red light for at least 2 seconds before she collided with the victim. Indeed, he submitted that the red light must have been operating for at least 4 seconds to allow at least two seconds for Nickolas Falco to predict the light change and move to the impact point on the pedestrian crossing. On that basis there was a total of about 8 seconds between the amber light coming on and the moment of impact.
He very properly conceded that the accused was travelling at a speed of about 55 kms per hour, and thus below the speed limit for the area. He asked the Court to infer that when allowing for the full 8 seconds at 55 kms per hour the accused would have had 122 metres before the amber light came on and about 60 metres of so before the red light came on.
He submitted that there are two alternative hypotheses available on the evidence namely that the accused’s lookout was grossly defective or that she took a risk in driving through the red traffic light either consciously or ignoring it. He submitted that the amount of methamphetamine in her blood may explain the lack of concentration in the circumstances. He invited the Court to infer that her driving was adversely affected by the methamphetamine. He submitted that it was open for the Court to find that she had taken a conscious risk of ignoring the red light because of her statement to the police that the lights were green. He submitted that the Court ought to find as a proved fact that the accused did not brake or vary her speed while driving through the intersection against the red light. He very properly conceded[34] that whatever had occurred, the accused would not necessarily have seen Mr Falco. He submitted that in the end this was a relatively straight road which was unobstructed and the four sets of traffic lights were clearly visible for hundreds of metres. He sought to distinguish the various authorities put forward by the accused on the basis that in most respects they involve drivers at a Give Way sign as opposed to a red light or Stop sign. He submitted that even if one were to disregard the effect of the methamphetamine, there remained a gross defective lookout. It was not a temporary distraction.
[34] Transcript p 125.
He invited the Court to return a verdict of guilty to the charged offence.
·The accused
Counsel for the accused, Mr Richards, submitted that there was no evidence from the Prosecution to indicate any impediment to the accused. He referred to the accused’s evidence in the interview that another vehicle was in front of her vehicle. She had spoken to that driver after the collision who had confirmed that Mr Falco had proceeded across the intersection while the lights were red on Stanford Road. He invited the Court to accept that the accused had a genuine belief that the traffic light was green albeit that she now accepts that it must have been red at the time.
He submitted that although that conversation with the unidentified driver was hearsay, it was consistent with the fact that other vehicles were slowing down as at the point of impact, and the collision had occurred almost immediately upon the light turning red. He submitted that the witness statements to the effect of having been stopped for a considerable period of time at the red light could not be an accurate recollection. He referred to the police officer Sergeant Norris, who deposed to travelling in the same lane behind the accused and was almost stationary at the intersection when the collision occurred.
He very properly conceded this was a case where driver inattention was the cause of the accident. He submitted that the Court ought not speculate or infer, in any way, that the methamphetamine was a cause of her inattention. He submitted that on the evidence of Professor White, methamphetamine may well have played no role at all and that if there was some effect it may have been positive and not negative. He stressed the fact that the accused was not driving erratically on the road nor driving in an irresponsible manner, speeding or over-confident. She was driving, on the evidence, at or under the speed limit. He submitted that the Court is left with the possibility that the only effect, if any, that she was experiencing was a positive one with improved concentration. He submitted that the Prosecution had not excluded as a reasonable possibility that this was simple driver inattention, something which is a normal consequence of driving on the road.
He submitted that in the absence of any evidence as to the accused’s tolerance, the mode, the timing of ingestion and the absence of any negative symptoms, the Court ought to accept that the methamphetamine played no role whatsoever.
He submitted that the proposition that there may have been an 8 second delay amounting to inattention is highly speculative. Even if the Court were to accept that there was a 4 second amber cycle followed by a 2 second red light, before the green light on the pedestrian crossing could be activated, it does not follow that there was a period of inattention of 6 seconds. Further given the speed of her vehicle, she would only have been 93.8 metres from the lights when they turned amber. One has to allow for the possibility that Mr Falco, anxious to be home in time, had predicted the green light. He submitted that if anyone had observed the car on the left lane slowing down, one might assume no more than the vehicle is slowing to turn left rather than continuing in an easterly direction.
Mr Richards referred to the cases of R v Jongewaard,[35] R v Pearce,[36] R v Bliss,[37] R v Goode[38] and R v Michels[39]. He submitted that the accused could not have been aware of the danger to Mr Falco as it was not possible to see him at the intersection.
[35] [2009] SASC 346.
[36] [2011] SASCFC 65.
[37] (1993) 173 LSJS 255.
[38] [2010] SADC 123.
[39] [2006] SASC 102.
He submitted that the Court could not exclude as a reasonable possibility that this was a case of inattention over a relatively short period of time with no other aggravating factors. He invited the Court to return a verdict of not guilty to the charged offence.
Discussion and findings
I remind myself that this is not a Court of morals. Apart from the aggravating factor, the fact that the accused had consumed an illicit drug is of no relevance save that it had an adverse effect upon her driving. Further the Court must not be influenced by the obvious sympathy for the welfare of Nickolas Falco and his family.
This trial concerns the question as to whether the Prosecution has proved beyond reasonable doubt that the accused had driven her vehicle in a culpably negligent manner or in a manner dangerous to the public, thereby causing ‘serious harm’ to Nickolas Falco.
The case for the Prosecution is that the accused’s inattention went beyond mere negligence or inadvertence and was sufficient to constitute dangerous driving. There can be no doubt, at law, that inattention or a failure to keep a proper lookout may of itself constitute driving in a manner dangerous to the public.[40] Whether it does so depends upon the circumstances surrounding the manner of driving. Whether it was driven in a manner dangerous is to be determined by an objective standard. The Prosecution highlighted the evidence of the concentration of methylamphetamine in the accused’s blood.
[40] Kamleh v R (1990) 51 A Crim R at 435; King v R [2012] HCA 24; and R v Arnold [2003] SASC 422.
Discussion of the legal principles as to methylamphetamine
I refer to the dicta of the Court of Criminal Appeal in R v Duryea,[41] as follows:
Evidence that a driver was affected by alcohol or a drug may be relevant to a section 19A charge in at least two ways. First, driving a vehicle on a road while so affected by alcohol or a drug as to being incapable of exercising effective control of the vehicle is itself driving in a manner dangerous to the public. In such cases the driving may be characterised as dangerous even though the way in which the defendant drove, viewed objectively, was unexceptional. Such cases are likely to be uncommon and clear evidence of the incapacity would have to be adduced.
The second use of evidence of alcohol or drug consumption occurs when the evidence does not establish an actual incapacity to drive but simply that the alcohol or drugs may have had the effect of impairing the driver’s faculties. If the jury is satisfied that there was some impairment of the faculties by alcohol or drug consumption it may use that evidence when considering whether the manner of driving which is proved by the evidence was dangerous. The jury may conclude that impairment caused by alcohol or drugs may explain the manner of driving. It may conclude that the impairment increased the risks arising from the manner of driving, for example, by reducing the driver’s ability to respond to any change of conditions or circumstances which may arise. That is why alcohol or drug consumption, and the impairment which it may have produced are to be considered as part of the circumstances of the driving.
[41] [2008] SASC 363 at [24]-[26].

In R v Greenham, Cox J said:
The relevant element of the offence created is the dangerous driving, not the cause of it. The jury will be called upon to make a qualitative judgment about a defendant’s manner of driving in the light of all the circumstantial evidence. Typically there will be one or more acts of overtly bad or at least questionable driving – high speed, veering across the road, poor lookout and so on – and sometimes evidence of a causative or explanatory kind as well. For instance, the defendant may have told someone before he got into his car that he was having trouble keeping awake or his driving error may have coincided with his using a mobile telephone, or there may be evidence of an alcohol intake which, according to an expert, could have affected the defendant’s driving faculties. The jury may take the alcohol evidence into account if, after considering all the evidence including the acts or acts of driving, they are satisfied that the alcohol had an influence on the defendant’s manner of driving.
In R v Bliss,[42] Mullighan J said:
However the law has long recognised the difference between mere inadvertence or negligence which is an ordinary risk of using the road in conduct which is plainly blameworthy, ie driving in a manner dangerous to the public … by empowering the jury to acquit of causing death by dangerous driving and to convict of driving without due care and attention. (Parliament) must have contemplated that not all departures from due care and attention, even if they cause death, are necessarily to be classified as dangerous within the meaning of s 19A.
[42] [1993] SASC 428 Mulligan J said at [9].
In R v Pearse,[43] Kourakis J explained at [57]:
It is important to understand that the factual finding that the manner of driving is dangerous is an evaluative one. Like a finding of negligence itself, in a civil or criminal context, it is a normative judgment made on the particular facts of the case, that the conduct of culpable. The verdict of the jury that the driving is dangerous is a judgment that the manner of driving is not a risk of the road which the community it represents finds acceptable.
When the special nature of the factual finding is kept in mind, the statements in the authorities, that the reasonable person in the circumstances of the accused must have appreciated that the driving was dangerous, in the sense that it created a serious risk of injury to the public, can be properly understood. ‘Reasonable person’ is the personification of the community standard … the reasonable person in the position of the accused allows the subjective circumstances of the driver, which may not be apparent to other road users, like intoxication, vision impairment and drowsiness to be taken into account.
[43] [2011] SASCFC 65.
There have been different views expressed by superior courts in Australia as to the inferences which may be drawn from the presence of drugs in the blood of an accused. In Pfeiffer v R, supra, King CJ, when referring to some erratic driving, said:
Although it is true that perfectly sober people lose control of motor vehicles and for … reasons that are not their fault, it is not acceptable to exclude from consideration the salient fact that the appellant at the relevant time must have been substantially under the influence of liquor. Where one has a driver proved to have a blood alcohol concentration which would substantially impair his driving skills, … the natural inference, in the absence of some other explanation is that the loss of control is caused by the driver’s alcohol impaired driving.
In Aiken v R [2014] NSWCCA 213, there was uncontested expert evidence that while it was not possible to quantify the level of impairment upon the driving, it was sufficient that there was ‘impairment to some extent’.
Contrast however, Swan v R, supra; and Lodge v Magorian [2012] WASCA 90.
In Swan’s case, the accused had consumed heroin; driven his vehicle at excessive speed; entered a pedestrian crossing against a red light which had been ‘red for some time’; collided with a pedestrian; and had not stopped. While there was evidence that heroin could cause fatigue, the Court of Appeal held that because the expert called by the Prosecution could not determine the effect of the drug without knowing the amount and purity of the heroin, the conviction should be set aside.
In Lodge’s case the Court of Appeal (WA) considered a similar factual case.
There was evidence that the accused’s speed had exceeded the limit; and that he had returned a blood alcohol level of 0.12%. The primary Judge had considered isolated features of the appellant’s driving combined with the alcohol level. He found the appellant guilty of the offence.
The Court of Appeal held that the expert evidence as to the effect of alcohol was generalised and not ‘individualised’ to the accused.
It concluded that the ‘objectively observable manifestations of the appellant’s driving did not support an inference beyond reasonable doubt that the appellant was under the influence of alcohol to such an extent that the appellant was incapable of controlling the vehicle. The Court directed an acquittal accordingly.
·Comparable Interstate Legislation
The difficulty in establishing the effect of drugs other than alcohol upon a driver have been addressed by Parliament in Western Australia.
Section 59B of the Road Traffic Act 1974 (WA) relevantly provides:
(5) In any proceedings for an offence against [the equivalent of s 19A(3) of the SA Act] a person who had at the time of the alleged offence a blood alcohol content of or above 0.15g of alcohol per 100ml of blood shall be deemed to have been under the influence of alcohol to such an extent as to be incapable of having proper control of a motor vehicle at the time of the alleged office.
(6) In any proceedings for an offence against [the equivalent of s 19A(3)] it is a defence for the person charged to prove that the [collision] was not in any way attributable …
(a)to the fact that the person charged was under the influence of alcohol, drugs, or alcohol and drugs …
It is for Parliament to consider whether such a statutory provision ought be enacted in South Australia.
·Findings as to the effect of methylamphetamine
I have set out at length the evidence given by both experts in respect of the possible effects of methamphetamine at the level found in the accused’s blood. The evidence of both Professor White and Dr Robertson highlighted the difficulty in determining precisely what effect a concentration of methylamphetamine will have upon an individual driver. While I readily accept that it will have some effect, that effect may indeed be positive in assisting the concentration of a driver.
Both experts distinguished methylamphetamine from other drugs such as alcohol, confirming that in the case of methylamphetamine, the effect upon an individual’s driving ability cannot be reliably predicted on the basis of drug levels alone. I have referred to their evidence that some effects can be positive including improved alertness as contrasted with fatigue and drowsiness associated with alcohol and some other drugs.
I accept the opinion of Dr Robertson that there is a need for an individual assessment of the particular driving in a given case. Here no one observed any effects of sweating, dilated pupils, irritability or increased aggression and confusion, indeed psychosis, which typically would be expected of from those with such levels of methylamphetamine.
I repeat that the Act does not place the onus upon the accused to prove that the collision was not attributable to the use of methylamphetamine as is provided in the equivalent legislation in Western Australia.
It is for the Prosecution to satisfy me beyond reasonable doubt as to the effect of methamphetamine in these circumstances. It must exclude any reasonable hypothesis consistent with innocence. The accused does not have to prove anything.
However I am positively satisfied that the accused was not so affected by methylamphetamine that she was incapable of effective control of her motor vehicle. In the subject case all of the evidence is consistent with the accused driving her vehicle in the right hand lane on The Grove Way at a speed at or under the appropriate speed limit. There was no evidence in the driving leading up to the collision of any overtly poor driving, veering across the road, high speed or otherwise. She had none of the indicia or symptoms of someone affected by methylamphetamine, as identified by both Professor White and Dr Robertson.
I turn next to whether the methylamphetamine, while not rendering her incapable of exercising effective control of her vehicle, contributed to the accused’s undoubted inattention, and provides an explanation for it.
Professor White opined that the methylamphetamine would have some adverse effect, even if it was limited to the accused concentrating on something other than the lights at the approaching intersection. In Aiken v R,[44] such a finding was sufficient to found an explanation for the accused’s inattention. However in that case there was no challenge to that finding.
[44] [2014] NSWCCA 213.
I readily accept that the methylamphetamine may well be an explanation for any inattention. However it is the absence of any other observations of her driving which causes me concern.
I note the evidence of both Professor White and Dr Robertson that the effects of methylamphetamine in respect of driving cannot simply be determined by references to the level in the accused’s blood. I accept the opinion of Dr Robertson that the only evidence of affect in this case was the generalised evidence of Professor White. I am not persuaded that the asserted negative effect of methylamphetamine upon the accused’s driving can be either inferred or assumed without regard to her presentation and her ‘individual circumstances’.[45]
[45] See Lodge v Magorian [2012] WASCA 90.
The accused had her children in the vehicle. This might have temporarily distracted her. There were vehicles on her left, at least one of which was moving in the adjoining lane. There was a vehicle stationary at the lights to the east indicating an intention to move across her lane of traffic; there were vehicles stationary on Stanford Road and Gateway Drive. I will not speculate, but it does not follow that the Court ought to infer, on the facts of this case, that the methylamphetamine contributed to her inattention.
Accordingly the Prosecution has not satisfied me that the methylamphetamine ingested by her had contributed to her inattention.
This is case involved solely inattention.
·Findings as to the undoubted inattention
It is necessary for me to make findings as to the events leading to the collision.
I am satisfied that the accused was driving her vehicle in an unremarkable manner within the speed limit in the right hand lane.
In this case there is a dearth of direct evidence as to the position of the accused’s vehicle at the point when the lights turned red. Indeed none of the witnesses positively identified her position in the right hand lane at the time when the amber light came on, until the point of impact. I accept that she was travelling on a road with which she was relatively unfamiliar. She was conscious of vehicles in the left lane some of which were still moving. A Court must not speculate, however the evidence is plain that Dorothy Ada Johnson’s vehicle was stationary in a westerly direction with the right hand indicator operating as if waiting to turn to the right across her line of traffic. There can be no doubt that the amber light remained on for 4 seconds.
In the absence of any proved adverse effect from the methylamphetamine, the question of timing is fundamental to the Prosecution case. It is obvious that the person who was in the best position to observe the path of the accused’s vehicle; the relevant distances; and timing; was Sergeant Norris, whose attention presumably was on the road ahead and when it was that the lights turned amber to red.
It does not follow that the accused should have been focused solely on the traffic lights immediately the amber light came on. There was traffic in the adjoining left lane, and traffic coming from the east which also ought to have attracted her attention.
I infer that she could not have been far from the intersection when the light turned red. This much is plain from the statement of Sergeant Norris; and by inference from the majority of the authors of the witness statements. There would have been a 2 second delay between the red light appearing and when the relevant light turned green for Nickolas Falco and the vehicle on Gateway Drive. None of the vehicles on Stanford Road and Gateway Drive did move at all before the collision.
The evidence as to timing is crucial. If I were satisfied beyond reasonable doubt that the pedestrian lights had turned green before Nickolas Falco moved, then the time from when the lights changed from amber to the point of collision would have been approximately 7 or 8 seconds.
It is artificial to attempt to reconstruct the events leading to the collision in the absence of evidence as to the location of the vehicles on The Grove Way at the time that the traffic light turned amber.
I cannot be confident from the evidence as to when the lights turned green for either of those roads or for Nickolas Falco, before the accused had entered the intersection. It is clear from the evidence of Sergeant Norris that the collision occurred as he was pulling up, and he had almost come to a stop.
As I have said I cannot be satisfied that Nickolas Falco did not move off before his light turned green. Again this is no criticism of him. He had suffered serious injuries, and it may be that his statement involved a reconstruction rather than a memory.
I have no doubt that the events unfolded very quickly. The accused would have seen the vehicles on Stanford Road and Gateway Drive still stationary. She could not have seen Nickolas Falco because her view of him was obscured by the vehicles in the left lane.
I do not overlook the evidence of Ms Gabrielli as to her estimate of the delay between the red light and the collision. However it does not accord with that of Sergeant Norris nor the inferences from the other evidence.
I readily accept that reasonable minds will differ as to the nature of the accused’s driving.[46] It is a question of degree, and in this case, timing as to whether an accused’s defective lookout is so defective as to constitute driving in a manner dangerous to the public. I am not satisfied that there was a delay of 8 or even 7 seconds between the lights turning amber and the collision. As best as I am able to find on the evidence I infer that there was a delay of 5 seconds between the lights becoming amber and the collision. That is to say the 4 seconds of the amber light and 1 second for Nickolas Falco to move to the point of impact. At that point the light facing the accused was red for 1 second.
[46] R v Jaeschke [2007] SASC 321.
This was an error in driving by the accused with extremely serious consequences for Nickolas Falco.
This was not a case of approaching a crossing with a pedestrian there to be seen. As I have explained the accused could not have seen Nickolas Falco until the point of impact.
It is plain that there are degrees of bad driving. Vehicles are dangerous objects and there is an obligation upon all drivers to use a high degree of care and concentration. The fact remains that collisions occur frequently on the roads. Driving through a red light is all too common an occurrence.
The mere fact of the collision and the ‘serious harm’ is not enough. Serious harm or even death may be caused without even a want of due care.
In the subject case I am satisfied, indeed it is not disputed that the accused’s attention was defective.
Ultimately I am not satisfied on the evidence presented at the trial, particularly as to timing, that the accused’s defective lookout was so defective as to constitute dangerous driving.
I am however satisfied beyond reasonable doubt that the defective attention constituted driving without due care and attention and not driving in a manner dangerous to the public.
Accordingly I find the accused not guilty of the offence as charged on the Information.
I am however satisfied beyond reasonable doubt that the accused is guilty of the aggravated form of the alternative offence of driving without due care and attention. The offence is aggravated by the serious harm suffered by Nickolas Falco in the collision.
Verdict
I find the accused not guilty of the charged offence. However pursuant to s 19B(3) of the Act I find the accused guilty of the offence of aggravated driving without due care and attention, contrary to s 45 of the Road Traffic Act, 1961 (SA).
Accordingly I enter a verdict of not guilty to the charged offence but guilty to the alternative offence of aggravated driving without due care and attention.