R v McLean

[2020] SADC 170

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v MCLEAN

Criminal Trial by Judge Alone

[2020] SADC 170

Reasons for the Verdicts of Her Honour Judge S  David

4 December 2020

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM

FATIGUE

Accused charged with offences of causing death/harm by dangerous driving – ambulance driver transporting a patient from near Port Pirie to the RAH in early hours of the morning – ambulance left Port Wakefield Road near Virginia and rolled over once causing death of patient and harm to passengers – accused fell asleep whilst driving shortly before vehicle left road – subsequently diagnosed with severe sleep apnoea – evidence adduced from fatigue expert as to the accused's work schedule in preceding week – defence case – accused denied feeling fatigued – expert evidence as to diagnosis of sleep apnoea - whether accused driving dangerously by reason of fatigue.

Held: Not guilty of charged offences or alternative offences of aggravated driving carelessly or driving carelessly.

Criminal Law Consolidation Act 1935 ss 19A(1), 19A(3) 19B; Road Traffic Act 1961 ss 45(1) and 45(3), referred to.
Kamleh v The Queen (1990) 51 A Crim R 435; Kroon v The Queen (1990) 55 SASR 476; Jiminez v The Queen (1992) 173 CLR 572, applied.

R v MCLEAN
[2020] SADC 170

1. Matthew McLean (‘the accused’) is charged with the offence of Causing Death by Dangerous Driving contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 and two counts of the offence of Causing Harm by Dangerous Driving contrary to s 19A(3) of the Criminal Law Consolidation Act 1935. He is charged on the Information dated 12 September 2018 as follows.

   First Count

   Statement of Offence

   Causing Death by Dangerous Driving. (Section 19A of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Matthew James McLean on the 16th day of August 2016 at Virginia, drove a motor vehicle in a manner which was dangerous to any person and thereby caused the death of Karen Biddell.

   Second Count

   Statement of Offence

   Causing Harm by Dangerous Driving. (Section 19A(3) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Matthew James McLean on the 16th day of August 2016 at Virginia, drove a motor vehicle in a manner which was dangerous to any person and thereby caused harm to Michaela Rose Jasper.

   Third Count

   Statement of Offence

   Causing Harm by Dangerous Driving. (Section 19A(3) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Matthew James McLean on the 16th day of August 2016 at Virginia, drove a motor vehicle in a manner which was dangerous to any person and thereby caused harm to Andrew John Roesler.

2. The accused pleaded not guilty to the charges. The trial initially proceeded with a jury. However, the jury was discharged because of delays occasioned by COVID-19. Prior to the commencement of the re-trial, the accused elected for trial by judge alone, which was granted as being in the interests of justice. Without objection, the transcript of the evidence from the first trial was tendered along with the associated exhibits.  I now publish reasons for the verdicts I deliver.

   Overview

3. On 16 August 2016, in the early hours of the morning, the accused was driving a bariatric ambulance transporting a patient from Coonamia (north of Port Pirie) to the Royal Adelaide Hospital (RAH). At a location on Port Wakefield Road, Virginia, the ambulance drifted from the road onto the western verge and collided with some trees before steering input by the driver. The ambulance then moved back across the road and off the eastern bitumen edge onto a grassed embankment where the vehicle rolled once. The patient died from injuries sustained in the rollover, and her daughter and an attending ambulance officer, situated in the rear of the ambulance with the patient, sustained injuries in the rollover.

4. The prosecution case was that the accused was significantly fatigued whilst driving and fell asleep shortly before the ambulance left the road. Immediately after the accident, the accused spoke with other ambulance officers and police officers and said that he ‘fell asleep’. There was evidence from a truck driver who made observations of the accused’s driving after he left Port Wakefield which, on the prosecution case, showed that the accused was struggling to concentrate shortly before the accident. The prosecution also adduced evidence from a fatigue expert, Professor Dawson, who examined the accused’s work schedule, taskings and reported sleep in the days preceding the vehicle rollover, and who formed the opinion that the accused would have been significantly fatigued whilst driving.

5. The accused gave evidence as part of the defence case. He denied that he felt drowsy or sleepy or that he was any more tired than he was during any other night shift. The accused said that he did not believe that he was at risk of falling asleep, and if he had believed he was at risk, he would have asked his partner to drive.

6. The defence case also consisted of evidence from Professor Reynolds who in February 2020 diagnosed the accused with severe sleep apnoea. He said that the accused was probably suffering from that condition at the time of the accident. He considered it plausible that the accused was unaware of his condition prior to February 2020, and that the accused suffered from an incident of sleep apnoea for the first time whilst driving the ambulance and immediately before the vehicle left the road.

   Legal directions 

7. I have applied the following principles in reaching my verdicts.

8. The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving the charges lies wholly upon the prosecution. The accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt will suffice. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of the offence, the prosecution is required to have proved beyond reasonable doubt each element of the charges. In these reasons, if the words ‘proved’, ‘established’, or ‘satisfied’ are used, this means to a standard of beyond reasonable doubt. If there is an explanation consistent with the innocence of the accused, or there is uncertainty as to where the truth lies, then the accused must be found not guilty. 

9. The accused elected to give evidence.  The accused was not obliged to do so. He had the right to remain silent in answer to the charges, leaving it to the prosecution to prove the legal elements of each charge. As the accused has given evidence in his defence, and called an expert witness as part of his case, that does not relieve the prosecution of the burden of proving the case beyond reasonable doubt. It is for the prosecution to prove the accused’s guilt. He does not have to prove his innocence. Subject to that, the accused’s evidence is to be assessed like the evidence of any other witness in this trial.

10. There was expert evidence presented at trial. Professor Dawson was called by the prosecution as to fatigue, shift work and their effects on human behaviour.  Professor Reynolds was called as part of the defence case on respiratory illness and sleep apnoea. There was no dispute as to the qualifications or expertise of either witness. The usual rule is that a witness can only give evidence of facts and is not permitted to express any opinions or conclusions drawn from those facts.  One exception to that rule is that a properly qualified expert can express an opinion on matters within his or her expertise.  In assessing expert evidence, it is for the trier of fact to decide what evidence to accept and the weight to place upon the evidence. As with any witness, the expert evidence can be accepted or rejected and is not to be blindly adopted because the witness is an expert in the relevant field.

11. As to the process of inferring facts, the prosecution submits that it was open to infer from the evidence that the vehicle rollover was fatigue related, and that the accused knew he was fatigued or that a reasonable person in the situation of the accused should have realised that there was a real risk that he would fall asleep, and that to continue driving was dangerous to the public, given that risk. Inferences are simply conclusions of fact rationally drawn from the combination of proven facts. However, inferences can only be properly deduced from the evidence rather than making guesses or engaging in speculation. Furthermore, before an adverse inference can be drawn as to an accused person’s guilt, there must be no rational hypothesis or explanation consistent with the accused's innocence.  If there exists another rational hypothesis or explanation, the accused must be found not guilty.

12. There was evidence adduced of the accused’s good character. Apart from a speeding conviction in 2005, the accused has no prior court appearances or prior convictions.[1] There was also evidence from Mr Lesley Drayton, the accused’s supervisor, that the accused was regarded as a reliable and conscientious ambulance officer who showed an attention to detail in his work, and that he was not a person to ‘cut corners’ or take risks in his work.[2]  The character evidence is relevant for two purposes. First, it is relevant to the question of whether the prosecution has proved beyond reasonable doubt that the accused committed any of the charged (or alternative) offences. The accused has been shown to be a person of good character and therefore he is less likely to have committed the offences as it is not in his nature. More specifically, it is relevant to the question of whether the accused was alerted to any signs of fatigue and whether he would have continued to drive whilst feeling fatigued. Second, the evidence of the accused’s good character is relevant in assessing the credibility of his account at trial, in that the accused is an honest person and less likely to be untruthful in his evidence. However, evidence of good character of itself cannot override other convincing evidence which may prove that the accused is guilty of any of the offences.

    [1]    T441.

    [2]    T163.

    Elements of the offence

13. There are three elements or ingredients which make up each offence of Causing Death by Dangerous Driving (count 1) and Causing Harm by Dangerous Driving (counts 2 & 3), each of which the prosecution must prove beyond reasonable doubt.  The first two elements are common to both offences. The third element for count 1 differs from the third element for counts 2 and 3.

14. The legal elements of the charged offences are as follows:

    1The accused drove a vehicle.

    2The accused drove the vehicle in a manner which was dangerous to the public.

    3By voluntarily driving the vehicle in a dangerous manner, the accused caused the death of Mrs Karen Biddell (count 1) and caused harm to Ms Michaela Jasper (count 2) and Mr Andrew Roesler (count 3). 

15. The first element of each charged offence is that the accused was the driver of the vehicle. There was no dispute that at all relevant times, the accused was driving the bariatric ambulance,[3] and I find this element of each offence proved.

    [3]    Exhibit P24, Agreed Facts, para 47.

16. The second element the prosecution must prove beyond reasonable doubt is that the accused drove a motor vehicle, the bariatric ambulance, in a manner dangerous to the public. This matter was very much in dispute in respect of each offence. In determining whether the accused drove in a dangerous manner, it is necessary to consider the distinction that the law draws between the offence of driving in a manner dangerous to others and the offence of careless driving, which is also referred to as the offence of driving without due care.[4]  Driving without due care is a lesser offence which is committed whenever a person fails to exercise the level of care a reasonably prudent driver would exercise. For this purpose, a prudent driver looks out for immediate dangers as well as upcoming risks. In contrast, dangerous driving requires the prosecution to prove that the accused’s driving was in a more serious category. The latter offences are not concerned with the ordinary risks of the road, including the ordinary risks that other drivers will not drive perfectly. The accused’s driving must have been worse than the ordinary risks of the road.

    [4]    Road Traffic Act 1961, s 45.

17. As King CJ said in Kamleh v The Queen:[5]

    If the driving although negligent does not go beyond what might fairly be regarded as an ordinary risk of the road, a crime of causing death or bodily injury by dangerous driving is not committed but the driver is guilty of driving without due care or attention.

    [5] (1990) 51 A Crim R 435, 437.

18. The seriousness of a driver's conduct must not be determined by reference to the results or consequences of their driving, that is, whether driving amounts to driving in a manner dangerous must not be assessed by reference to the consequences of the driving but rather by the manner of driving itself. For a person to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition, that condition must be such that, as a matter of objective fact, his driving in that condition is dangerous to the public. A person’s driving is dangerous if it involves a serious or real risk of injury to others which is greater than the ordinary risks of the road and which amounts to a danger to the public.  Put another way, the prosecution must prove that a reasonable person in the situation of the accused should have realised that driving in his tired or fatigued condition was dangerous to the public, given the risk of falling asleep. The prosecution can prove this element of the offence by showing that there were warning signs that should have alerted the accused to the risk of falling asleep.

19. In Kroon v The Queen,[6] King CJ said:

    Every act of falling asleep at the wheel is preceded by a period during which the driver is driving while awake and therefore, assuming the absence of involuntariness arising from other causes, responsible for his actions. If a driver, who knows or ought to know that there is a significant risk of falling asleep at the wheel, continues to drive the vehicle, he is plainly driving without due care and may be driving in a manner dangerous to the public. If the driver does fall asleep and death or bodily injury results, the driving prior to the falling asleep is sufficiently contemporaneous with the death or bodily injury (McBride v The Queen (1966) 115 CLR 44 at 51 per Barwick CJ) to be regarded as the cause of the death or bodily injury.

    It is clear then that the question how sleep came upon an accused person and whether he had any premonition of it, so far from being irrelevant as held in Virgo v Elding [1939] SASR 294, is the crucial issue in determining whether the period of conscious and voluntary driving which preceded the sleep amounted to the offence or offences charged. There must be very few cases in which a normal healthy person falls asleep at the wheel of a vehicle without any prior warning. Such warning may come in a number of ways. There will be cases in which the driver ought to be aware of the risk by reason of the length of time during which he has driven without rest, the conditions under which he has driven, the atmosphere in the cabin or his state of health. There will be cases in which he has direct warning from experiencing drowsiness. I should think that in almost every case a driver, before falling asleep, has a sensation of drowsiness at least for the brief period of time necessary to warn him to stop the vehicle. The cases must be rare in which a driver who falls asleep can be exonerated of driving without due care, at least in the moments preceding sleep.

    The more difficult issue in this class of case is whether the driving prior to sleep amounts to the indictable crime. The critical issue is the degree of the accused person's departure from the standard expected of an ordinary prudent driver. The period of time during which the accused experienced drowsiness, whether proved by direct evidence or inferred from the behaviour of the vehicle or other factors, will be important. So will the degree of departure from prudent standards involved in continuing to drive for a prolonged period without rest or in spite of conditions in the cabin or poor health. The added responsibility arising from the fact that the accused was in control of a heavy vehicle capable of causing great damage might be a very important factor.

    [6] (1990) 55 SASR 476, 480.

20. In Jiminez v The Queen,[7] in a joint judgment, the High Court approved the reasoning in Kroon and said:

    It follows that for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition that condition must be such that, as a matter of objective fact, his driving in that condition is a danger to the public. Various matters will be relevant in reaching such a conclusion. The period of the driving, the lighting conditions (including whether it was night or day) and' the heating or ventilation of the vehicle are all relevant considerations. And, of course, it will be necessary to consider how tired the driver was. If there was a warning as to the onset of sleep that may be some evidence of the degree of his tiredness. And the period of driving before the accident and the amount of sleep that he had earlier had will also bear on the degree of his tiredness. But so far as "driving in a manner dangerous" is concerned, the issue is not whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that, in the circumstances, his driving was a danger to the public. The various matters which bear on that question, and the way in which they bear on it, should be carefully drawn to the attention of the jury.

    [7] (1992) 173 CLR 572, 579-580.

21. The relevant period of driving to be assessed is the accused’s driving before he fell asleep or lost consciousness. The driving must be sufficiently contemporaneous with the vehicle leaving the road and the vehicle rollover such that the period during which the accused allegedly drove dangerously was a substantial cause of the impact and death or harm.   If a person is asleep, his actions at the time he is asleep are not conscious or voluntary and he cannot be criminally responsible for driving dangerously at that time. There was also evidence in this trial of a short period of time after the accused allegedly fell asleep and before the ambulance rollover during which there is steering input by the driver consistent with the accused having woken and attempted to regain control of the car. It is not suggested that while the accused was attempting to regain control of the car that he was driving dangerously.

22. Accordingly, the relevant period in which to assess whether the accused’s driving was objectively dangerous is the period before the accused allegedly fell asleep which is sufficiently contemporaneous to the collision, such that the alleged dangerous driving during that period of driving was a substantial cause of the impact and death or harm. In this case, the accused is alleged to have been driving dangerously on his trip back to the RAH after leaving Port Wakefield and from about 2.33 am on 16 August 2016, when the accused activated cruise control.[8]

    [8]    T31.

23. The test to be applied is that of any reasonable person in the situation of the accused who ought to recognise that driving in his condition is a danger to the public. In applying the test, the accused’s personal characteristics are not to be taken into account and no regard is to be had to matters such as the accused’s age, driving experience, lack of education, mental facilities, eyesight, reaction times or personality defects.[9]

    [9]    Kroon v The Queen (1990) 55 SASR 476, 487 per White J.

1. The prosecution case is that the accused was significantly fatigued after he left Port Wakefield for Adelaide and from about 2.33 am,[10] and that a reasonable person in the situation of the accused would have appreciated that to continue driving was a danger to the public, given the real risk that he would fall asleep. Whilst there appears little or no dispute that the accused fell asleep shortly before the ambulance rolled, the mere fact alone that the accused fell asleep is insufficient to establish that a reasonable person in the situation of the accused ought to have known that he was a real risk of falling asleep and that his driving was dangerous. The prosecution relies on the following matters to prove this element of the offence. First, the evidence of Professor Dawson that the accused’s ‘onerous’ schedule over the preceding ten days, consisting of both day and night shifts, combined with the time of night at which the accused was driving, would have left him significantly fatigued. Second, the observations made by Mr Graham of the accused’s alleged errant driving after he left Port Wakefield and before the vehicle rollover. Third, the accused’s statements to others after the vehicle rollover that he thought he fell asleep, and that he had a coffee at Port Wakefield to keep him going, from which the prosecution submits it can be inferred that the accused knew he was fatigued prior to the collision, and which is relevant to his level of tiredness. Fourth, the conditions in which the accused was driving, namely that he was driving a heavy vehicle, at night, in a heated cabin with cruise control activated.

   [10] T31.

2. On the defence case, the evidence does not establish that a reasonable person in the situation of the accused ought to have realised that he was a real risk of falling asleep and that to continue driving in that condition was dangerous, given that risk. Defence counsel submits that the accused’s workload had been heavy, but he had sufficient periods of rest prior to his shift that evening. Indeed, on the defence case, the accused had slept 13 hours of the previous 24 hours and had been awake since 4.00 pm, so only ten and a half hours in the context of a 12-hour shift. Second, the accused’s driving as described by Mr Graham was equivocal. The first piece of driving was equally consistent with the accused overtaking a semi-trailer by giving it a wider than usual berth, as fatigue, and the second piece of driving was consistent with some inadvertent movement of the vehicle within its own lane due to the wind effect of being positioned behind two road trains. Defence counsel submits the two instances of driving referred to by Mr Graham were equivocal and separated by about 30 minutes and not attended by any other purported transgressions. Accordingly, defence counsel submits it could not be inferred from Mr Graham’s observations that the accused was drowsy or at risk of falling asleep. Third, defence counsel submits that little can be made of the accused stopping for an iced coffee and a Mars Bar at Port Wakefield in conjunction with a ‘toilet stop’, and to do so is hardly a tell-tale sign of fatigue. Fourth, the accused’s statements that he fell asleep are not admissions that he was tired, nor can as much be inferred from those statements. The accused was simply surmising that he must have fallen asleep as that is the only explanation he could provide for the accident.  Finally, other persons described the accused as behaving normally and displaying no signs or symptoms indicating that he was significantly fatigued, and the accused gave evidence that he did not feel drowsy or any more tired than normal.

3. As to the third element of the offences, the prosecution is required to prove that the accused, by driving in a manner dangerous to the public, caused the death of Mrs Karen Biddell (count 1) and caused harm to Ms Michaela Jasper (count 2) and Mr Andrew Roesler (count 3). To satisfy this element, the prosecution does not have to show that the dangerous driving was the sole cause of the deceased's death or the sole cause of harm to Ms Michaela Jasper and Mr Andrew Roesler. Proof that the accused’s dangerous driving was a substantial cause is enough. There is no dispute that Mrs Karen Biddell died due to injuries sustained during the vehicle rollover, or that Ms Michaela Jasper and Mr Andrew Roesler sustained injuries as result of the vehicle rollover which amount to harm.[11] There was no dispute that this element of each offence was proved, and I am so satisfied. 

   [11] Exhibit P24, Agreed Facts, paras 61-65.

   Defence of honest and reasonable mistake

4. The defence of honest and reasonable mistake is available to the charges. As the High Court said in Jiminez v The Queen:[12]

   Driving in a manner dangerous to the public is at once both the offence and, if it is relevant, the fault, but it will be a defence to establish an honest and reasonable mistake as to facts which if true would exculpate the driver. Perhaps the most obvious example is where a driver is unaware of the defective condition of his vehicle and believes it upon reasonable grounds to be in good working order. And the same issue is raised when, in a case like the present where the dangerous manner of the driving is said to consist in the likelihood of going to sleep, a driver claims that he had no warning of the onset of sleep.

   It follows from what has been said above that it was necessary for the prosecution in the present case to establish that the applicant was affected by tiredness to an extent that, in the circumstances, his driving was objectively dangerous. It was open to the jury to draw an inference to that effect from a finding that the applicant went to sleep at the wheel. It was, however, also open to the jury to find that the applicant honestly and reasonably believed that, in all the circumstances, it was safe to drive.

   ...

   The absence of any warning of the onset of sleep, if the jury found that there had been none, laid a foundation for that being an honest and reasonable belief. Lack of warning as to the onset of sleep is only one of a number of circumstances that may bear on the question whether a driver honestly and reasonably believed that it was safe for him to drive. Ordinarily, the circumstances which bear on whether the driving was dangerous will also bear on this question.

   If, in a case based on tiredness, there is material suggesting that the driver honestly believed on reasonable grounds that it was safe for him to drive, the jury must be instructed with respect to that issue. In particular, they must be told that if they conclude that the driving was a danger to the public, they must also consider whether the driver might honestly have believed on reasonable grounds that it was safe for him to drive. And, of course, they must be instructed in appropriate terms that the onus of negativing that defence rests with the prosecution.

   [12] (1992) 173 CLR 572, 583-584.

5. The defence of honest and reasonable mistake was raised on the accused’s evidence. To convict the accused of any of the charges the prosecution must, in addition to proving the elements of each offence, negative the defence and establish that the accused did not honestly believe on reasonable grounds that it was safe for him to drive or continue driving after leaving Port Wakefield and prior to the collision.

6. As to the accused’s evidence on this topic, he said that when he left Coonamia for Adelaide, and whilst driving to the RAH, he did not feel tired, or any more tired than on a normal night shift, and he did not experience any symptoms or warning signs of the onset of sleep.[13] The accused’s condition of sleep apnoea was undiagnosed in 2016, and the accused was not aware of this condition or any affect it may have had on the quality of his sleep.[14] There was evidence from Professor Reynolds that it is common for individuals with this condition to not perceive any sleepiness during their waking hours.[15] There was also evidence that the accused had slept 13 of the previous 24 hours and had been awake since 4.00 pm,[16] so ten and a half hours in the context of a 12-hour shift.

   [13] T449, 452.

   [14] T457.

   [15] T499.

   [16] T439-441.

7. There was other evidence which supported the defence that the accused honestly and reasonably believed he was not at risk of falling asleep. Mr Roesler gave evidence that the accused displayed no signs of tiredness or fatigue throughout the evening, nor did he complain of tiredness or drowsiness.[17]  Mr Roesler was driving the ambulance to Coonamia and the accused was seated next to him in the front cabin.[18] Mr Roesler was in the company of the accused at the patient’s home for about 3 hours.[19] The accused made numerous phone calls whilst at Coonamia and indeed, contacted Mr Albury, the state duty manager, about filming the process for instructional purposes,[20] which suggests he was actively engaged in the tasking. Mr Roesler then travelled in the rear of the ambulance from Coonamia to Port Wakefield.[21] He saw the accused and spoke with him at the service station in Port Wakefield.[22] In the context of the constancy of his contact with the accused throughout the shift, Mr Roesler said that the accused displayed no signs whatsoever of tiredness or fatigue.[23] Mr Roesler said he enjoyed driving, and there was nothing to stop the accused from requesting he, Mr Roesler, take over the driving at Port Wakefield had the accused indeed felt significantly fatigued or tired.[24]

   [17] T99, 91-92.

   [18] T442.

   [19] T446-447.

   [20] T447.

   [21] T82-83.

   [22] T84, 95.

   [23] T99.

   [24] T92.

8. Further, Mr Drayton, the accused’s supervisor, gave evidence that he had never seen the accused take risks at work or ‘cut corners’ or act dangerously or carelessly.[25] Mr Drayton regarded the accused as a reliable and conscientious ambulance officer with an attention to detail.[26]

   [25] T163.

   [26] T163.

9. The evidence laid a foundation for the defence of honest and reasonable mistake in respect of the charged offences and the alternative offences. The onus of negativing the defence rests with the prosecution. Defence counsel submits the prosecution has not negated that the accused believed on reasonable grounds that it was safe for him to continue driving after having left Port Wakefield and that he was not at risk of falling asleep. On the other hand, the prosecution submits that the accused would have felt tired given Professor Dawson’s evidence as to the significant levels of fatigue he would have been experiencing, further, the accused’s decision to continue driving in those circumstances was not reasonable given he was driving a heavy vehicle at night. Even if the accused was habituated or accustomed to feeling fatigued so that he did not place the same significance on those feelings of tiredness, the prosecution submits his belief that it was safe to continue driving was not reasonable given his significant levels of fatigue.

   Alternative verdicts

10. The alternative verdict of Aggravated Careless Driving (also known as Aggravated Driving without Due Care) is available for count 1.[27] It is an aggravated offence because the death of a person caused through the careless driving of another is a specified circumstance of aggravation.[28] The alternative verdict of Careless Driving (also known as Driving without Due Care) is available for counts 2 and 3.[29]

    [27] Road Traffic Act 1961, s 45(1), Criminal Law Consolidation Act 1935, s 19B.

    [28] Road Traffic Act 1961, s 45(3).

    [29] Road Traffic Act 1961, s 45(1), Criminal Law Consolidation Act 1935, s 19B.

11. The elements of the offence of Aggravated Careless Driving and Careless Driving are the same except in respect of the third element. The prosecution must prove each element beyond reasonable doubt. They are as follows:

    1.   The accused drove a vehicle.

    2.   The accused drove without due care.

    3.   The accused’s manner of driving caused the death of Mrs Karen Biddell in respect of count 1 (her death being the aggravating circumstance) and caused harm to Ms Michaela Jasper in respect of count 2 and Mr Andrew Roesler in respect of count 3.

12. The alternative verdicts are to be considered in circumstances where the first and third elements of the offences of Causing Death or Harm by Dangerous Driving was proved but the prosecution had failed to establish that the accused’s driving was dangerous. If the prosecution proved that the accused’s driving was careless rather than dangerous (and proved the other elements of the offences), then the accused would be guilty of Aggravated Careless Driving for count 1, and Careless Driving for counts 2 and 3.

13. As to what constitutes careless driving or driving without due care, the law requires all drivers to exercise the care that a reasonably prudent driver would exercise. For this purpose, a prudent driver looks out for immediate dangers as well as upcoming risks. To satisfy this element of the offence the prosecution needs to establish that the accused failed to exercise the level of care a reasonably prudent driver would exercise. Put another way, the prosecution must prove that in continuing to drive in a tired and drowsy condition, the accused’s driving involved a departure from the standard expected of an ordinary prudent driver.

14. The test is an objective one and no regard is to be had to the accused’s personal characteristics such as the accused’s age, driving experience, lack of education, mental facilities, eyesight, reaction times or personality defects.[30]

    [30] Kroon v The Queen (1990) 55 SASR 476, 487 per White J.

15. The relevant period of driving to be assessed is the accused’s driving before he fell asleep or lost consciousness sufficiently contemporaneously to the vehicle rollover such that the careless driving was a substantial cause of the vehicle rollover and death.

    Prosecution evidence

16. In August 2016, the accused was employed by the South Australian Ambulance Service to drive and operate an ambulance on behalf of the Bariatric Response Unit, which was part of the Emergency Support Service.[31]  The accused was based at the Fulham Gardens Ambulance Station in Adelaide.[32] His shift team usually worked 12-hour shifts over four days in a pattern of two-day shifts, followed by two-night shifts, followed by four days rostered off.[33]  Typically, the day shifts would last from 6.30 am until 6.30 pm and the night shifts would last from 6.30 pm until 6.30 am the following morning.[34]

    [31] Exhibit P24, Agreed Facts, paras 1, 4.

    [32] Exhibit P24, Agreed Facts, para 5.

    [33] Exhibit P24, Agreed Facts, para 8.

    [34] Exhibit P24, Agreed Facts, para 8.

17. The records of the accused’s shifts and taskings for the period from Friday 5 August 2016 to Monday 15 August 2016 are set out in the agreed facts, and in exhibited documents/charts.[35]

    [35] Exhibits P24, Agreed Facts, paras 21-38, P22, P23 and D25.

18. On Monday 15 August 2016, the accused was working a night shift which he commenced earlier than usual at about 6.00 pm.[36]  He was working with his regular partner, Mr Andrew Roesler.[37]  Mr Roesler had worked with the accused as a partner for about four years as at August 2016.[38] As part of the prosecution case Mr Roesler gave evidence as to their movements that evening.  Mr Roesler said that he and the accused ordinarily worked as a crew of two with one person driving and the other person in an attendant’s role. They would swap after each job.[39] Mr Roesler referred to this system as the ‘case about’ or ‘job about’ system.[40]  Each shift team had a clinical team leader.  Their team leader in 2016 was Mr Lesley Drayton.  Mr Drayton’s role was to support the shift team in their day-to-day operations.[41] 

    [36] T441.

    [37] T76.

    [38] T69-70.

    [39] T58.

    [40] T70.

    [41] T67-68.

19. On 15 August 2016, Mr Roesler and the accused were tasked to travel to Mrs Biddell’s home, in Coonamia, and transport her to the RAH.[42]  Mr Roesler arrived at the Fulham ambulance station at around 5.45pm.[43]  When he arrived, the accused was already sitting in the passenger seat of the ambulance, and although it was not his turn to drive, he drove the ambulance to Coonamia.  Mr Roesler and the accused did not discuss why he was not driving on the way up and it did not worry him.[44] Mr Roesler did not ascribe any significance to this.[45]

    [42] T75.

    [43] T76.

    [44] T76.

    [45] T76.

20. On the way to Coonamia, they stopped at Port Wakefield for about ten minutes to refuel, and whilst at the service station, they both ate hot dogs. They then drove directly to Coonamia.[46]  It is an agreed fact that Mr Roesler and the accused arrived at the patient’s home at 8.46 pm.[47] There were difficulties in moving Mrs Biddell into the ambulance because of her obesity.[48] Members from the Country Fire Service (CFS) or State Emergency Services (SES) attended and assisted by cutting a hole in the wall so that Mrs Biddell could be wheeled out of the house and placed into the ambulance on a barouche.[49]  It is an agreed fact that the ambulance left Mrs Biddell’s home at 12.29 am on the following morning, 16 August 2016.[50]  The accused was driving the ambulance and Mr Roesler was seated in the rear of the ambulance with Mrs Biddell and her daughter.[51] 

    [46] T78-79.

    [47] Exhibit P24, Agreed Facts, para 40.

    [48] T81.

    [49] T81.

    [50] Exhibit P24, Agreed Facts, para 41.

    [51] T82-83.

21. On the return journey to the RAH, they stopped at 1.09 am for approximately two minutes at Hope Gap before reaching Port Wakefield.[52]  They then drove directly to Port Wakefield and arrived at 1.49 am.[53]  Mr Roesler said he and the accused took turns in using the toilet facilities whilst the other person stayed with the ambulance and patient. He did not recall anything out of the ordinary having occurred during the time they were at Port Wakefield. They left Port Wakefield after about 10 or 15 minutes, so at the latest by 2.04 am.[54]  The accused continued to drive.[55] Mr Roesler and Ms Jasper did not report experiencing anything unusual during the journey from Port Wakefield until during the moments before the vehicle rolled.  It is an agreed fact that the vehicle rollover was at about 2.50 am.[56]

    [52] Exhibit P24, Agreed Facts, para 42.

    [53] Exhibit P24, Agreed Facts, para 43, T84.

    [54] Exhibit P24, Agreed Facts, para 43, T85.

    [55] T85.

    [56] Exhibit P24, Agreed Facts, para 45.

22. Mr Roesler was subsequently taken to the RAH, where he was diagnosed with soft tissue injuries and fractured sixth and seventh ribs on his left side.[57] 

    [57] T91.

23. Mr Roesler said that at no time during the working day or evening did the accused express to him any concerns about his being able to drive.[58] He agreed that he could have taken over the driving had he been asked and there would have been no reason to stop him from doing so.[59] He said there was no indication that the accused was tired or fatigued[60] and the accused did not complain of being tired.[61]

    [58] T91-92.

    [59] T92.

    [60] T99.

    [61] T99-100.

24. Mr Roesler said that he and the accused were a team and all of their work was done as a team.[62] They had worked a lot of shifts together.[63] Mr Roesler thought they had worked well together and they had a rapport.[64]

    [62] T92.

    [63] T92.

    [64] T92.

25. The accused’s supervisor, Mr Lesley Drayton spoke with the accused during his shift.  He said that the accused first contacted him from Coonamia to say they had arrived safely.[65]  The accused called him a second time and told him that they would be on the scene at Coonamia for some time because of the difficulties associated with transporting the patient to the RAH.[66]

    [65] T150.

    [66] T151.

26. Mr Drayton later received information over the radio that there had been an accident.[67]  He travelled to the accident scene  and on the way, he received information that the patient had died.[68]  After he arrived, he saw the accused on the other side of the road from the ambulance.[69]  He said the accused was obviously distressed and extremely upset and agitated.[70] He said the accused told him a couple of times that he had fallen asleep and that he had killed his patient.[71] Mr Drayton said he told the accused ‘Don't say anything further’ and they walked together in a northerly direction up Port Wakefield Road for at least 100 or so metres.[72] Mr Drayton said the accused just kept saying that he fell asleep and that ‘She's dead’.[73]

    [67] T152.

    [68] T153.

    [69] T154.

    [70] T160.

    [71] T154-155.

    [72] T155.

    [73] T155.

1. Mr Drayton said a police officer approached them when they returned to the accident site.[74] The police officer asked whether the accused could give a statement and Mr Drayton indicated that the accused was not in a frame of mind to do so.[75] The police officer then asked if the accused would  take a breathalyser to which Mr Drayton agreed.[76] The accused was breathalysed, and there was no alcohol or other intoxicants detected in his blood.[77] Mr Drayton said he left the accused in the care of the police officer and he had no more conversations with the accused about what had happened.[78]

   [74]T155.

   [75] T155.

   [76] T155.

   [77] Exhibit P24, Agreed Facts, para 57.

   [78] T155-156.

2. Mr Drayton gave evidence that he had never seen the accused take any risks in his work, nor had he seen the accused ‘cut corners’ or act dangerously or carelessly.[79]  He regarded the accused as being reliable and conscientious. He said the accused showed attention to detail, was punctual and the accused is a person he is happy to have in his team.[80]

   [79] T163.

   [80] T163.

3. During that evening, the accused also spoke with Mr Albury, the SAAS state duty manager.[81]  Mr Albury had contact with the accused on two or three occasions that evening.[82] The accused’s first call to Mr Albury occurred prior to midnight and was in relation to the difficult extrication of Mrs Biddell from her home. The accused asked for permission to film the extrication, which was granted if they obtained permission from the patient and her family.[83] The accused then called Mr Albury again after midnight saying that they were on their way to the RAH.[84]

   [81] T165.

   [82] T165.

   [83] T165-166.

   [84] T166.

4. Mr Albury received an ambulance communication around 2.00 am notifying him that the bariatric ambulance had been involved in an accident at Virginia or Two Wells.[85] The accused rang Mr Albury again between 2.15 and 2.30 am.[86] Mr Albury said that the accused was quite distressed and kept reiterating that he killed a patient.[87] Mr Albury asked him what had happened and the accused replied, ‘I think I fell asleep’.[88]  A recording of the phone call was exhibited and played to the Court.[89]  The prosecution placed particular emphasis on the following part of the conversation:

   A             do you know what happened Matthew?

   MM         I think I fell asleep. 

   A             alright.

   MM         drifted off. 

   A             alright, lets...

   MM         stopped at Port Augusta Port Wakefield and got a coffee to keep me going.

   [85] T166.

   [86] T166.

   [87] T166.

   [88] T166.

   [89] Exhibit P11.

5. Police attended at the accident scene.  The accused spoke with a police officer, Constable Davies.  Constable Davies and his partner were tasked to attend at the scene on Tuesday 16 August 2016 at about 2.52 am.[90]  After they arrived, Constable Davies approached the accused, who told him that he was the driver of the ambulance.[91]  Constable Davies told the accused to ‘wait here’.[92]  Constable Davies spoke with other persons at the scene and then returned to speak with the accused.[93] He asked the accused if he was hurt, to which the accused replied that he had hurt his thumb or hand.[94]  The accused said that he had been driving all night and that he had fallen asleep.[95] Constable Davies could not remember in what order the accused told him this.[96] The accused said he had left Port Pirie at 6.00 pm and was heading to Adelaide. This was the end of their conversation.[97]

   [90] T170.

   [91] T173.

   [92] T173.

   [93] T173.

   [94] T174.

   [95] T174.

   [96] T174.

   [97] T174.

6. In cross-examination, Constable Davies agreed that he noted that the accused said: ‘he had left Adelaide at about 18:00 hours, picked up the deceased and her daughter from their Port Pirie address and were conveying them to the Royal Adelaide Hospital’.[98]  He also noted that the accused said that ‘they hadn’t stopped for a break and that he had fallen asleep’.[99]  Constable Davies said that when he spoke to the accused, he appeared to be distressed.[100] Constable Davies agreed that he did not make a note of the accused having said he had been driving all night, and that he may have been mistaken about this.[101]  In those circumstances I am not prepared to rely on the accused’s purported statement that he had been ‘driving all night’.  The prosecution also made submissions that the accused said to Constable Davies that he had been ‘going since 6.00 pm without a break’. That was not his evidence and I put those submissions to one side.

   [98] T178.

   [99] T178.

   [100] T179.

   [101] T179-180.

7. The accused also spoke to Sergeant Mowday at the accident scene. She was on duty as the Elizabeth patrol sergeant on the morning of Tuesday, 16 August 2016.[102] In this role, she was notified via Police Communications of a vehicle incident which had occurred on Port Wakefield Road, Virginia involving a South Australian Ambulance Service vehicle.[103] Subsequent to receiving this information, Sergeant Mowday made a request for all available police patrols at Elizabeth to make their way to the scene of that incident.[104] She also arranged for the Major Crash Investigation Section to attend.[105] Sergeant Mowday said she also attended at the accident scene on Port Wakefield Road.[106]

   [102] T181.

   [103] T181.

   [104] T181.

   [105] T181.

   [106] T181-182.

8. Sergeant Mowday arrived at the scene not long before 3.15 am.[107] She gave evidence that she asked the accused: ‘were there any other vehicles involved’, to which he replied: ‘no’.[108]  She asked the accused: ‘do you recall what happened?’ to which the accused replied: ‘yeah, I recall I fell asleep’.[109]  The accused then proceeded to talk about something at Port Wakefield, at which Sergeant Mowday stated: ‘I'll stop you there. I'm not going to have any further discussion with you about what happened. However, I will let you know that an alco will be required and at hospital you will be required to provide a sample of blood’.[110] She indicated to Constable Blieden who was standing there and said, ‘This officer here will remain with you’.[111] She had no further contact with the accused.[112]

   [107] T182.

   [108] T183.

   [109] T183.

   [110] T183.

   [111] T183.

   [112] T183.

9. In cross-examination, Sergeant Mowday agreed that she made two sets of notes in her notebook, the first on 16 August 2016 before 7.00 am and the latter on 18 August 2016.[113]  In respect of her notes made on 16 August, she agreed that she noted that it was she who asked the accused if he recalled what had happened and in response, he told her ‘he fell asleep’, whereas in her notes made on 18 August, she wrote the accused said: ‘Yeah, I recall. I fell asleep’.[114] I am satisfied that it was Sergeant Mowday who used the word ‘recalled’, not the accused, rather the accused said that ‘he fell asleep’, as recorded in her more contemporaneous notes.

   [113] T184-185.

   [114] T185-186.

10. The prosecution adduced a body of evidence as to the reconstruction of the vehicle rollover.  Sergeant Canning attended at the accident scene and took a series of measurements and photographs which were subsequently supplied to Sergeant Fulcher, who is a specialist crash reconstructionist.[115]  Sergeant Canning described the relevant section of Port Wakefield Road as a bitumen road in ‘pretty good’ condition.[116]  Both the southbound and northbound carriageways consisted of two lanes separated by a median strip containing grass, trees and bushes.  There was an embankment on each side.[117]  There was a moderate long right-hand bend for southbound vehicles further north of the collision scene which lasted for about a kilometre.[118]  The speed limit for this section of Port Wakefield Road was 110 km/h.[119]  The ambulance was situated on the grassed embankment.[120]  Sergeant Canning prepared a sketch plan which reflected the tyre marks identified during his examination.[121]  He also obtained an aerial photograph of the scene which indicated the tyre marks, the approximate point of impact and the resting point of the ambulance.[122]

    [115] T190.

    [116] T190.

    [117] T190-191.

    [118] T191.

    [119] T191.

    [120] T191.

    [121] Exhibit P13.

    [122] Exhibit P14.

11. Sergeant Fulcher considered the circumstances of the vehicle rollover and the likely speed of the ambulance leading up to it.[123]  There was no dispute taken with his findings.  In summary, he gave evidence that the ambulance left the right-hand lane of the southbound carriageway, hit a tree on the grass median strip and then travelled back to the left-hand lane of the southbound carriageway where it went over a grass embankment and rolled over once. 

    [123] T215-216.

12. Sergeant Fulcher said that the ambulance had initially drifted off the bitumen road and onto the median strip at a shallow angle, which is usually caused by a driver not paying attention to the driving task.[124] He said that the ambulance drifted rather than swerved as there was a gradual movement from the bitumen road rather than a sudden one.[125]  He said that if the vehicle had swerved, you would expect to see a much steeper angle in the tyre marks.[126]  He said the ambulance was moving in a relatively straight line but curved slightly to the right because of the steep embankment on the median strip which may have pulled it towards the centre of the median.[127] 

    [124] T236.

    [125] T236.

    [126] T236.

    [127] T236.

13. Sergeant Fulcher said that there was no evidence of any steering input prior to the ambulance reaching the grass median strip.[128]  The ambulance then entered the median strip and travelled in a relatively straight line for a short distance. The rear of the ambulance kicked out because of steering input to the left by the driver.[129]  After the steering input was applied the ambulance travelled through the point of impact with the trees and back onto the bitumen road.[130]  Once the ambulance was back onto the bitumen road, the angle of rotation was greater than it was on the median strip.[131]  Upon reaching the eastern shoulder of the roadway it started to straighten again, which indicates the driver was turning the wheel to the right to regain control of the ambulance.[132]  The ambulance rotated clockwise causing the rear end to move to the left and the ambulance continued to rotate until it hit the soft soil of the embankment. The left wheels then dug into the soft soil and because of the ambulance’s high centre of mass, it rolled over once.[133] 

    [128] T237.

    [129] T237.

    [130] T238.

    [131] T238.

    [132] T238-239.

    [133] T239.

14. As to the vehicle’s speed, Sergeant Fulcher calculated that at the time the ambulance moved onto the grassed median strip, it was travelling at a speed of between 71 km/h and 92 km/h.[134]  The upper end of that range is consistent with the speeds recorded on the ambulance vehicle location system which captured the speed at five second intervals.[135]  At about 2.33 am on 16 August 2016, the speed of the ambulance was recorded at 95 km/h and it remained at that speed with very few fluctuations until 2.46 am.[136] This constant speed indicated to Mr Fulcher that the cruise control had been activated, and was engaged in the seconds before the collision.[137]

    [134] T242.

    [135] T245.

    [136] T245.

    [137] T245.

15. Mr Elliot McDonald, a senior vehicle examiner, expressed the view that the ambulance was in good condition prior to the incident and there was nothing mechanically wrong with the vehicle which could have contributed towards or caused the vehicle rollover.[138]

    [138] T220.

16. As to the accused’s driving after he left Port Wakefield for the RAH, there was evidence from Mr Riley Graham as to his observations of the ambulance. As of August 2016, Mr Graham was working as a truck driver.[139] On 15 August 2016, he commenced work at about 10.00 pm at Wingfield. He travelled from Wingfield to Port Wakefield to collect livestock.[140] He was driving a MAN prime mover truck with an attached semitrailer.[141] Mr Graham collected the livestock at about 1.40 am from a farm on the outskirts of Port Wakefield. He then proceeded south through Port Wakefield.[142] As he entered Port Wakefield, he noticed the bariatric ambulance at the exit of the BP service station. It did not seem in a hurry, so he drove past it and the ambulance pulled out behind him.[143] He did not notice anything about the ambulance at that stage.[144] Mr Graham continued travelling in a southerly direction at 100 km/h as this is the maximum speed limit for a semi-truck.[145] He said the ambulance passed him just before the point-to-point cameras, situated about 4 km or 5 minutes south of Port Wakefield.[146] He said the ambulance was around 30-40 metres ahead of him as he approached the cameras.[147] He said that as he approached the point-to-point cameras, there was a very slight left-hand bend, and as the ambulance was in the right-hand lane overtaking him, he noticed it drifting slightly across the right-hand solid lane onto the shoulder of the highway for a couple of seconds.[148] He said the ambulance gradually moved back into its lane, but not in an erratic motion.[149] The ambulance then slowly moved away from him.[150]

    [139] T106.

    [140] T106.

    [141] T106.

    [142] T107.

    [143] T107-108.

    [144] T108.

    [145] T108.

    [146] T108, Exhibit P4, shown as the ‘Port Wakefield Cameras’.

    [147] T109.

    [148] T110-111.

    [149] T110.

    [150] T111.

17. Mr Graham caught up with the ambulance around the Lower Light area. At this point, the road still consisted of two lanes heading in a southerly direction.[151] He said the ambulance was in the left-hand lane, and behind two road train trucks. The speed limit for road trains is 90 km/h.[152] He said he travelled behind the ambulance for about 10 to 15 seconds.[153] He noticed it drifting slightly to the left and right of the left-hand lane. It was not crossing over the white lines.[154] He said there were a few movements, but they did not continue for the whole time he was observing the ambulance.[155] He said that as he went to pass the ambulance, it was continuing to move slightly within its lane.[156] Mr Graham did not see the ambulance again after that.[157]

    [151] T112-113.

    [152] T113.

    [153] T114.

    [154] T113.

    [155] T114.

    [156] T113, 114.

    [157] T114-115.

18. In cross-examination, Mr Graham was asked about his observations of the ambulance near the Port Wakefield cameras. He agreed that the ambulance did not go onto the dirt verge, nor was there any jerking movement. Rather, there was just a gradual movement over the solid white line.[158]  He agreed that as the ambulance was gradually drawing away from him, it was in his view for about 15 to 20 kilometres. In that time, he did not see any other abnormal movements by the ambulance or errant driving.[159]

    [158] T123.

    [159] T124-125.

19. As to his observations when the ambulance was behind the road trains, Mr Graham said that each road train had two full-length trailers connected and were roughly 40 metres in length.[160]  He said there was about 20 metres between them. He said to overtake the road trains and the ambulance, he had to travel about 100-150 metres.[161] He did not know how long the ambulance was travelling behind the road trains.[162] He agreed that from his experience, there can sometimes be a wind effect when travelling behind a road train.[163] In relation to whether you would have to adjust your wheel occasionally to keep going straight, he said it depends on factors such as the weather, wind and how close you are to the road trains.[164] He clarified the ambulance was not jerking or suddenly correcting and it was just moving within its own lane.[165]

    [160] T125, 126.

    [161] T126.

    [162] T127.

    [163] T127.

    [164] T127.

    [165] T129.

20. Mr Graham’s evidence is relevant to the question of the accused’s tiredness or fatigue after he left Port Wakefield, and whether he was exhibiting warning signs that he was tired or fatigued prior to the rollover.  For the evidence to be used in that way relies on an acceptance of the following matters. First, that Mr Graham’s observations were accurate. Second, that the accused’s driving as described by Mr Graham was caused by his tiredness or fatigue, rather than another innocent explanation – for example, that the accused inadvertently took the bend too widely to avoid a truck, or in respect for the road trains, that the movement by the ambulance was caused by wind, or as a result of a ‘microsleep’ caused by the accused’s undiagnosed sleep apnoea. Third, that the accused would have been aware that he had momentarily strayed over the white line, or aware that the ambulance was moving within its own lane, or both.

21. The prosecution also adduced expert evidence from Professor Dawson who has worked in the field of fatigue and shift work for over 30 years.[166] His expertise relates to the relationship between sleep patterns and human performance.[167] There was no dispute as to Professor Dawson’s qualifications or expertise on those topics. 

    [166] T278.

    [167] T278.

22. In July 2017, Professor Dawson was asked by the police to provide a report as to the potential effect of the accused's shift work on his levels of fatigue in August 2016.[168] Professor Dawson said that in preparing his report, he was provided with a work/rest schedule for the accused, a summary of the circumstances of the vehicle rollover and information regarding the accused's mobile telephone usage in the days and weeks preceding the incident.[169] He was later provided with a report from Professor Reynolds relating to a diagnosis of sleep apnoea.[170]

    [168] T281-282.

    [169] T282.

    [170] T282.

23. As to sleep generally, Professor Dawson gave evidence that most people need at least five hours sleep in the prior 24 hours, and at least 12 hours sleep in the prior 48 hours.[171] He said that below this level, most people show a measurable impairment of their faculties and mood changes.[172] He said sleep has its best recovery value for non-shift workers between the hours of 11.00 pm and 7.00 am. That recovery value is reduced by 10% when a person sleeps outside of that time phase.[173] Professor Dawson said that for non-shift workers, the circadian rhythm or body clock’s low point is typically between 2.00 am and 6.00 am, and the peak period of alertness is typically between 5.00 pm and 9.00 pm. However, with a shift worker, the body clock can be displaced, and a person can report feeling ‘a bit less’ alert during the day and ‘a little less’ fatigued at night.[174]

    [171] T284-285.

    [172] T285.

    [173] T285.

    [174] T301.

24. Professor Dawson said that a person who persistently fails to have nourishing, restorative sleep will experience cognitive impairment.[175] There will be changes in a person’s ability to regulate their mood and undertake hand-eye coordination tasks including motor skills and driving.[176] He said reaction times become more variable and slightly longer such that there is a delay in response times, and a person may experience ‘tunnelling’, in that he or she focuses on one very specific task and forgets about matters going on around it.[177]

    [175] T288.

    [176] T288.

    [177] T289.

25. Professor Dawson gave evidence that a ‘microsleep’ is where a person becomes unaware of the environment around them or becomes unconscious for more than half a second and up to three seconds. A microsleep can develop into a ‘sleep onset event’, which is a period of unconsciousness of over five seconds.[178] 

    [178] T290.

26. Professor Dawson gave evidence that most shift workers working day and night shifts in combination experience a reduced amount of sleep and an increase in the amount of waking up during that sleep.[179] He said that level of fatigue can become chronic or endemic for shift workers; that is, they spend their whole lives feeling tired.[180]

    [179] T291.

    [180] T291.

27. As to napping or short sleeps, Professor Dawson said that any additional sleep for a shift worker is good in terms of recovering from fatigue, and more sleep is better.[181] However, if a person sleeps for longer than 20-30 minutes, there can be a period of sleep inertia which can extend for 20-30 minutes after a person awakes.[182]  He  said that when a person does not have as much sleep as they need, usually between five and seven and a half hours a day, the body becomes increasingly fatigued and that fatigue accumulates. This is referred to as ‘sleep debt’.[183] He said a person who is chronically fatigued carries a greater sleep debt than someone who has proper rest, however some people are less impaired than others in response to the equivalent level of sleep debt.[184] He said this is because some people biologically react differently to fatigue than others.[185] Professor Dawson said temperature can affect a person’s ability to sleep.[186] He said there is a thermo-neutral zone, where it is neither alerting nor soporific. Depending on the time of the year, the zone is typically between 18 and 24 or 25 degrees Celsius, but it is a little higher in summer and lower in winter.[187]

    [181] T291.

    [182] T291-292.

    [183] T292.

    [184] T292.

    [185] T292.

    [186] T294.

    [187] T294.

1. In relation to driving in the dark, Professor Dawson said the receptors at the back of a person’s eyes are potentially telling him or her to go to sleep.[188] If a person is fatigued and performing a boring task, he or she is more likely to fall asleep in the dark than in the light.[189] 

   [188] T296.

   [189] T296.

2. As to cruise control, he said anything that automates the driving task and involves less engagement will increase the risk of a person falling asleep. He said the risk increases the longer a person drives a vehicle.[190] Most people can drive for up to two hours before their performance starts to decline, irrespective of their level of alertness.[191] He said a very tired person’s performance declines after 30 to 45 minutes, and in a moderately tired person after 60 to 90 minutes. [192]

   [190] T297.

   [191] T298.

   [192] T298.

3. In determining whether an accident is ‘fatigue related’, Professor Dawson said that there are two broad categories of data to assess.[193] The first category focuses on how much sleep was had by the driver during the week prior to the accident, and any signs or symptoms of fatigue shown by the driver leading up to the accident.[194] He said the week prior to the accident is relevant for two practical reasons; people's ability to recall sleep/wake behaviour prior to seven days is extremely poor and the further in the past something happens the less likely it is to influence your level of fatigue.[195]

   [193] T303.

   [194] T303.

   [195] T304.

4. The second set of data relates to the accident phenomenology, and whether the circumstances of the accident are consistent with a fatigue-related incident or whether there is a more obvious cause of the accident.[196]

   [196] T303.

5. As to the circumstances of this case, Professor Dawson said that the shift cycle of four days on and four days off comprising of 12-hour shifts is a relatively standard shift work pattern. It is most common for shift workers to complete a shift pattern of ‘day-day, night-night, break’.[197] He said that it is important to understand that even though shift work is accepted as necessary in many occupations, that does not mean shift workers are not fatigued.[198] He said people's bodies do not adapt to rotating shift work. However, if a person undertakes shift work for long enough, he or she will become used to it and the person may not recognise themselves as fatigued.[199] He said if you are at a low point in your body clock, you will feel fatigued irrespective of how much sleep you have had and whether you have had a nap or not.[200]

   [197] T304.

   [198] T304.

   [199] T305-306.

   [200] T306-307.

6. Professor Dawson was provided with the shifts undertaken by the accused from 4 August 2016 to 15 August 2016, as well as details of the accused’s taskings during the shifts and mobile telephone records. He was also later provided with the report of Professor Reynolds and the accused’s account of his sleep during that period. That material is summarised in charts and the exhibited agreed facts.[201]

   [201] Exhibit P24, Agreed Facts, paras 21-38.

7. Professor Dawson described the accused’s work schedule as onerous.[202] He said the accused worked nine 12-hour shifts (108 hours) between 4 August and 15 August, the ninth shift being the shift during which the collision occurred.[203] He said the 36-hour break from 6.00 am on Tuesday, 9 August 2016 to Wednesday, 10 August 2016 was the longest break the accused had, and subsequent to that were the two additional night shifts.[204] He said from Wednesday, 10 August, the accused worked two night shifts, two day shifts and then a subsequent night shift.[205] He said alternating between night shift and day shift would be very disruptive of the circadian rhythm or biological clock. He said that the accused worked day shifts on 10 and 11 August as additional overtime, and the fact they were day shifts would have been less disruptive for the circadian rhythm, but the accused’s workload was still fairly intense.[206]

   [202] T312.

   [203] T311.

   [204] T312.

   [205] T312.

   [206] T312.

8. Professor Dawson said the accused’s recovery periods are manifestly inadequate,[207] and the accused’s body clock would not have significantly adapted to his shift work.[208] He expressed the view that at the time of the vehicle rollover, the accused’s body clock was at a low point, and would be telling him it was time to sleep.[209] He said that the accused was likely to have accrued a sleep debt over the previous five to nine days. He said any individual working the accused’s shifts during that time, including a healthy person without any sleep problems, would have struggled to maintain alertness while driving even if they tried their hardest.[210]

   [207] T312-313.

   [208] T314.

   [209] T314.

   [210] T314-315.

9. Professor Dawson was asked more specifically about the accused’s work shifts, taskings and reported sleep during the period from 8 August 2016 to 16 August 2016 (referred to in exhibit P23). He agreed that the accused commenced a night shift on 8 August 2016 at 6.30 pm which ended on 9 August 2016 at 6.30 am. The accused reported having slept on 9 August 2016 from 7.00 am to 10.30 am for 3.5 hours.[211] The accused had a rostered day off on 9 August 2016. He reported having slept on 9 August 2016 from 9.00 pm to 10 August 2016 at 7.30 am, for 10.5 hours. Professor Dawson said this appears to be an ample night's sleep.[212] He clarified that a typical night's sleep would be five to seven hours, but in this case, a 10-hour sleep is not implausible given the sleep debt from the accused’s night shift on 9 August.[213]

   [211] T319.

   [212] T319.

   [213] T319.

10. Professor Dawson agreed that the accused commenced a night shift on 10 August 2016 at 6.30 pm which ended on 11 August 2016 at 6.30 am. The accused reported having slept before the end of the shift from 1.00 am to 6.30 am, for 5.5 hours.[214] He said that the accused’s reported sleep was entirely possible as there were no taskings during that time.[215] The accused reported having slept a further two hours on 11 August 2016 from 1.30 pm to 3.30 pm. Professor Dawson said this was reasonable given that the accused had slept for 5.5 hours during his previous night shift.[216]

    [214] T319-320.

    [215] T320.

    [216] T320.

11. The accused commenced his next shift on 11 August 2016 at 6.30 pm.  He reported having slept for four hours during his shift from 2.30 am to 6.30 am. Professor Dawson said this also seemed reasonable to him.[217] The accused reported having slept on 12 August 2016 from 11.00 pm to 6.00 am, for seven hours.[218] Professor Dawson said this period of sleep was reasonable in his view.[219] The accused then commenced a day shift on 13 August 2016 at 6.30 am. He slept on 13 August from 9.30 pm to 6.00 am for 8.5 hours, which Professor Dawson considered was reasonable.[220]

    [217] T320.

    [218] T320.

    [219] T320-321.

    [220] T321.

12. The accused then commenced a day shift on 14 August 2016 at 6.30 am which ended on 15 August 2016 at 6.30 pm. He reported having slept that night from 10.00 pm to 6.00 am, for 8 hours. The accused was due to start a night shift on 15 August at 6.30 pm. He reported having slept on 15 August 2016 from 11.00 am to 4.00 pm, for 5 hours.[221] Professor Dawson considered that it was statistically unlikely that the accused slept from 11.00 am to 4.00 pm, having slept eight hours overnight. He said that there would not be sufficient ‘sleep pressure’ to do so and it is unlikely that the accused would have slept another five hours the following afternoon.[222] He said the exception to this would be in someone carrying an enormous sleep debt.[223] 

    [221] T321.

    [222] T321, 379.

    [223] T322.

13. As to the accused’s reports of sleep during the ten days prior to the accident, Professor Dawson considered that it was difficult for shift workers to accurately report their sleep as they sleep very chaotically.[224] However, he conceded that if someone has a routine, it makes it easier to remember or at least say with greater certainty when they slept.[225]

    [224] T331.

    [225] T332.

14. Professor Dawson said he believed the accused would have been highly fatigued at the time of the accident based on the amount of sleep reported by him, even with the reported extra sleep had during his shifts. He said the sleep was chaotic and at different circadian phases, therefore reducing its recovery value.[226] He said the accused would have been at a fatigue level that would have affected his ability to concentrate and drive.[227]

    [226] T324.

    [227] T324.

15. Professor Dawson was asked to assume that the accused consumed an iced coffee and a Mars bar at the Port Wakefield Service Station between 1.45 am and 2.05 am on 16 August 2016, and he was asked to comment on the effect of the food and drink on the accused’s level of alertness.[228] He said the short-term effects of the food and drink would be alerting.[229] In general terms, the food and drink would not have any effect for about 10-20 minutes, depending on the extent to which the accused consumed caffeine, and would probably peak after half an hour and then decline after 45 minutes to an hour.[230] The food and drink was consumed between 1.49 am and 2.04 am and the vehicle rollover occurred at about 2.50 am, so the alerting effect of the food and drink may not have started to decline at the time of the rollover.

    [228] T327.

    [229] T327.

    [230] T328.

16. Professor Dawson was referred to the evidence of Mr Graham, and was asked to assume that the ambulance had moved out of its lane and across the unbroken white line for about one to two seconds, and that the ambulance later moved within its own lane for a period of up to 10-15 seconds. He agreed that the accused’s fatigue was an explanation for the observations made by Mr Graham. He said fatigue is entirely consistent as an explanation for the accused’s driving as observed by Mr Graham, however it is not the only explanation for it.[231]

    [231] T328.

17. In relation to cabin atmosphere, Professor Dawson said that given the accident happened in August, the thermo-neutral zone for an individual would be set a bit lower than the traditional 18 to 24 or 25 degrees.[232] He said being in a closed space with a high temperature increases the level of sleepiness an individual will feel.[233]

    [232] T330.

    [233] T330.

18. Professor Dawson formed the opinion that the cause of the vehicle rollover was entirely consistent with a fatigue-related incident.[234]

    [234] T330-331.

19. In cross-examination, Professor Dawson agreed that he is not a medical practitioner, nor has he researched sleep apnoea.[235] He agreed that he would defer to Professor Reynolds on the topic of sleep apnoea.[236]

    [235] T332.

    [236] T282.

20. Professor Dawson gave evidence that typically a person who is fatigued will exhibit some symptoms of tiredness or fatigue. He confirmed that sleepiness is a symptom of fatigue. A person may yawn, or rub their eyes, or they may become less talkative and disengaged from social communication with other people in the vehicle.[237]  He said that there are a set of symptoms, of which an individual will experience some and possibly all, but not necessarily all.[238] He said that there is a spectrum of effects starting from low levels of fatigue through to the point at which you cannot stay awake.[239] People who are chronically fatigued experience those symptoms regularly and may think 'I've been this tired plenty of times before and I've never fallen asleep driving', so there is a complex set of psychological factors at work around that decision to continue driving or not.[240]

    [237] T348-349.

    [238] T349.

    [239] T349.

    [240] T352.

21. Professor Dawson agreed that assuming the accused slept on Sunday 14 August from 10.00 pm to Monday 15 August at 6.00 am, and slept later that day from 11.00 am to 4.00 pm, the accused would have been awake for about 10.5 hours at the time of the collision, which he conceded was not an inordinate length of time.[241] Further, he agreed that the mobile telephone data did not show that the accused made or received any phone calls during those reported periods of sleep.[242]

    [241] T380-381.

    [242] T380.

22. Professor Dawson expressed the opinion that the accused would have become fatigued from around 10.00 pm to 11.00 pm.[243] The accused left Coonamia for the RAH at 12.29 am on 16 August 2016.[244] 

    [243] T382.

    [244] Exhibit P24, Agreed Facts, para 41.

23. Defence counsel suggested to Professor Dawson that he formed an opinion too hastily that the accident was fatigue related, and he did not have regard to other data which should have caused him to express a more guarded opinion.[245] More specifically, he did not have regard to the tasking records, and the sleep had by the accused during his shifts or the accused’s mobile phone records in respect of night shifts. It was also suggested to Professor Dawson that having provided his report to the police, he did not wish to admit that he may be in error and that he was too hasty in forming a conclusion. He disagreed with those suggestions and maintained his opinion that the accused was fatigued whilst driving to the RAH and that the accident was fatigue related.[246] He said that it was reasonable to conclude that the accident was fatigue related. He said fatigue has some variability to it.[247]  That is to say, in his opinion the accused might have been very, very fatigued or just very fatigued, but he was still fatigued at the time of the accident based on the self-report and the circumstances.[248] When it was put to Professor Dawson that he should have expressed a qualified opinion and changed that opinion once he learnt of the accused’s sleep history, he said all the information indicated that in all likelihood the accused fell asleep at the time of the accident, and the accident was fatigue related.[249]

    [245] T396.

    [246] T396-397.

    [247] T373.

    [248] T373.

    [249] T397.

    Defence case

24. The accused gave evidence in his own defence. He was 38 years old at the time of the accident and is now 42 years old. He is married and has four children aged from seven to 14.[250] He has been employed by the South Australian Ambulance Service for 10 years.[251] He does not have any criminal convictions and he has one traffic offence in 2005 for speeding.[252] The accused has been driving for approximately 23 years.[253]

    [250] T411.

    [251] T411.

    [252] T411-412.

    [253] T412.

25. The accused said he worked in the bariatric unit as part of a team of approximately 25 people.[254] His main partner for 18 months prior to the accident was Mr Andrew Roesler.[255] The accused said that he and Mr Roesler had a good working relationship.[256]

    [254] T414-415.

    [255] T415.

    [256] T416.

26. In relation to his sleeping habits, the accused said that he goes to sleep very quickly.[257] The accused said that he would not take his mobile telephone into the bedroom when he slept so as not to be disturbed.[258]

    [257] T420.

    [258] T439.

27. As to his routine for a day shift, the accused said that he would set his alarm for 6.00 am, at which time he would get himself ready for work.[259] He would then head to the station where he would usually have breakfast and commence his shift at 6.30 am.[260] He said he only lives two to three minutes away from the station, so it does not take him long to get there.[261] He said he showers at night, so he is ready in the morning and he does not have to wake up his family.[262]

    [259] T416.

    [260] T417.

    [261] T417.

    [262] T417.

28. As to the accused’s routine for a night shift, he said he would have a ‘preparation sleep’ between 11.00 am and 3.00 pm or 4.00 pm, before he went to work. He said this is when his house is quiet as his children are at school.[263] The accused said he would eat dinner before starting night shift. During a night shift he was in the practice of drinking milk, either plain or flavoured, and he might have a snack, such as a fruit bar or Mars Bar.[264]

    [263] T418.

    [264] T420.

29. The accused said that after his night shift, he would go directly home, and usually arrive there at about 6.35 am to 6.40 am.[265] If he had a significant amount of sleep on his night shift, he would stay up and help his wife prepare the children for school, and then drop them at school. He would then come home and go to sleep.[266] If he had not had much sleep on the night shift, he would have breakfast and go straight to bed.[267]

    [265] T421.

    [266] T421.

    [267] T421.

30. The accused said there were occasions when he would sleep during a night shift in the ‘huts’ at Fulham Station.[268]  He said he would generally go to sleep after his last job until the end of the shift or until the pager went off for another tasking.[269] He said he never relied on sleeping during a night shift as the taskings were unpredictable with some shifts busier than others.[270] The accused said he never slept in the hut during day shifts.[271]

    [268] T422.

    [269] T422.

    [270] T424.

    [271] T424.

31. As to overtime, the accused said he worked overtime on occasion if he felt he was okay to do it. However, if he thought he was tired, he would not volunteer for an overtime shift.[272] He could do up to two overtime shifts during his rostered time off. He said he would only sometimes work on his rostered days off due to family commitments.[273]

    [272] T421.

    [273] T422.

32. A schedule of the accused’s shifts, taskings and sleep from 5 August 2016 to 16 August 2016 was exhibited.[274] The accused said he calculated his sleep from his memory, routine, ‘case cards’ which recorded his taskings and mobile telephone records.[275] As to his sleep after a day shift, he said his general routine was to go to bed at about 10.00 pm and then wake up around approximately 6.00 am, so that he would usually sleep for eight hours.[276] He said he also had a routine of ‘preparatory sleep’ for at least three hours prior to a night shift.[277] He said he would wake up naturally from his preparatory sleep.[278] He said the times in the schedule were on the conservative side.[279]

    [274] Exhibit D25.

    [275] T425, 427.

    [276] T427.

    [277] T425-426.

    [278] T432.

    [279] T441.

33. As to the accused’s day shift on Sunday 14 August, he said he returned home after he completed the day shift.[280] He then went to sleep at the usual time of 10.00 pm and woke on Monday 15 August at the usual time of 6.00 am.[281] On that day, he had a ‘preparatory sleep’ from 11.00 am until 4.00 pm and woke naturally from his sleep.[282] He said he recalled he slept for five hours as his wife remarked on his very long sleep. He also has a clear memory of this sleep as it was his last before the incident.[283]

    [280] T439.

    [281] T439.

    [282] T440-441.

    [283] T440.

34. The accused said he began his night shift early on Monday 15 August and arrived at the station at 6.00 pm.[284] He said Mr Roesler drove to Coonamia and he was a passenger seated in the front cabin.[285] He said that they stopped at Port Wakefield where they refuelled, and he consumed a hotdog and a can of Coke.[286] From Port Wakefield they drove to Coonamia, which took approximately two and a half hours.[287] He did not sleep at all during the trip to Coonamia.[288]

    [284] T441.

    [285] T442.

    [286] T443.

    [287] T442-443.

    [288] T442.

35. After they arrived at Coonamia, they tried unsuccessfully to move the patient into the ambulance.[289]  They contacted the CFS and SES, who came out to assess the situation. The CFS and SES removed the window at the front of the house.[290] The accused said the process took approximately three hours,[291] and he and Mr Roesler were consistently in each other's company during this time.[292] The accused made a couple of phone calls to Mr Albury, the State duty manager, about filming the process for instructional purposes.[293]  The ambulance left for Adelaide after midnight. The accused was driving the ambulance. Mr Roesler was attending to Mrs Biddell and he travelled with Ms Jasper in the back of the ambulance.[294]

    [289] T444-445.

    [290] T445-446.

    [291] T446.

    [292] T447.

    [293] T447.

    [294] T448.

36. He said that on the return trip he was travelling at approximately 100 km/h, and he had engaged cruise control, as was his habit.[295] He said he used cruise control all the time when travelling in the country, even in his personal vehicle, as he thinks it's safer and gives him more time to concentrate on the road.[296]  He  said that he did not feel any more tired than usual, and if he believed he was at risk of falling asleep he would have asked Mr Roesler to take over the driving.[297]  He said he didn’t feel tired, sleepy or drowsy on the trip to Port Wakefield.[298]

    [295] T449.

    [296] T449.

    [297] T449.

    [298] T449.

1. The accused stopped the ambulance near Hope Gap at 1.09 am for a couple of minutes as the patient’s leg had moved off the stretcher and needed to be readjusted so she was more comfortable.[299] They reached Port Wakefield at 1.49 am and stopped at the BP petrol station because he needed to use the toilet facilities.[300] He and Mr Roesler took turns using the facilities whilst the other person waited with Mrs Biddell and the ambulance.[301]  The accused said he bought an iced coffee and a Mars Bar because he had not had anything to eat since Port Wakefield and he was quite hungry. He said he drinks milk at night to fill him up and he thought they would top his stomach up until he got home, where he would have his breakfast.[302] He said it occurred to him that there was caffeine in the iced coffee, but he did not consume it for that purpose.[303]   He said that if he had wanted to pep himself up, he would have had an espresso or a latte coffee.[304] 

   [299] T449.

   [300] T450; Exhibit P24, Agreed Facts, para 43.

   [301] T450.

   [302] T450.

   [303] T451.

   [304] T452.

2. The accused said that they left Port Wakefield after approximately 15 minutes.[305] There was evidence that the ambulance left at about 2.04 am.[306] He said he did not feel sleepy when they left, and if he had felt fatigued or at risk of falling asleep, he would have swapped over with Mr Roesler.[307] He said he activated cruise control and turned on the heater at some stage.[308] He said he did not feel overheated and he felt comfortable and normal.[309] 

   [305] T452.

   [306] Exhibit P24, Agreed Facts, para 43.

   [307] T452.

   [308] T453.

   [309] T453-454.

3. As to the evidence of Mr Graham, the accused said he did not remember an incident where the ambulance’s rear wheel travelled about one foot over the outside white line.[310] However, the accused said that it is his habit when driving past a semitrailer to always gives the vehicle a wide berth because of the wind.[311]  The accused could not remember the ambulance moving within its lane behind the road trains.[312] He said in his experience, there can be turbulence which blows from heavy vehicles such as road trains, causing the ambulance to move a bit from side to side when positioned behind them.[313]

   [310] T462.

   [311] T462.

   [312] T463.

   [313] T463.

4. The accused said that after leaving Port Wakefield, and when approaching the scene of the vehicle rollover, he felt normal and he did not feel tired or fatigued.[314] He said he recalled travelling in the overtaking lane, and then a bump, after which time he thinks he woke up and saw a tree.[315] He remembers correcting the ambulance and then it rolling.[316] The accused said that after the rollover he went to the back of the ambulance to check on everyone, and unsuccessfully attempted to resuscitate Mrs Biddell.[317]

   [314] T454.

   [315] T455.

   [316] T455.

   [317] T455.

5. The accused said he has little recollection of his conversations with others after the vehicle rollover.[318] As to his statements that he fell asleep, the accused said that he was confused and in effect surmised that he had fallen asleep, as this was the only explanation he could arrive at for the accident. He said however, that at no stage prior to the rollover did he feel like he was going to fall asleep, and if he had, he would have stopped as he does not take risks in his job.[319]

   [318] T456.

   [319] T456.

6. After the accused was charged with criminal offences, he was referred to a neuropsychologist, Mr Colin Field, who suggested that he undergo testing for sleep apnoea. The accused said he did not believe that he had sleep apnoea.[320]  The accused underwent a sleep study at Burnside Hospital this year.[321]  Following those tests, he consulted a specialist, Dr Paul Reynolds, who diagnosed him with severe chronic sleep apnoea.[322]

   [320] T457.

   [321] T457.

   [322] T458.

7. In cross-examination, the accused said he felt no more tired that evening than he did during any other night shift.[323] The accused said he did not think he was at risk of falling asleep, or a risk to anyone else on the road.[324]

   [323] T464.

   [324] T466.

8. The accused said that to his knowledge the only time he had fallen asleep whilst driving was on the evening of the accident.[325] He said if he had any suspicion that he might fall asleep suddenly and without warning, he would not have driven the ambulance.[326]

   [325] T467.

   [326] T466.

9. The accused agreed that he had done nine 12-hour shifts in 12 days, and he had not had a scheduled break of more than 36 hours, and he did two extra night shifts on his rostered days off.[327] As to overtime, he said he only did extra shifts occasionally and he would not do overtime if he did not feel he was fit for work.[328]

   [327] T467.

   [328] T469.

10. As to the evening of 15 August 2016, the accused said he did not know whose turn it was to drive, so he just went and sat in the passenger seat.[329] He agreed that the tasking took longer than expected because of the difficulties in placing the patient in the ambulance.[330]

    [329] T471.

    [330] T471-472.

11. As to the evidence of Mr Graham, the accused agreed he was sitting behind two semitrailers which were travelling at 90 km/h. He said that there was no urgency for the patient to reach the RAH, and he was driving at a comfortable speed.[331] He said he dropped back from his usual 100 km/h to 90 km/h in anticipation that the speed limit was going to change as he approached the city.[332] He accepted that he was still at Lower Light, but he said that he was just happy ‘cruising along’ and he was just being safe.[333] The accused disagreed with a suggestion that he sat behind the two semitrailers at 90 km/h because he was struggling to concentrate, and it was easier for him to follow the trucks into Adelaide.[334]

    [331] T475.

    [332] T475.

    [333] T475.

    [334] T475.

12. As to using cruise control, the accused said that he always does so on long trips as he feels that it gives him more time to concentrate on other aspects of driving.[335] He accepted that the cruise control was set at 95 km/h, although the speed limit for Port Wakefield Road was 110 km/h.[336] As to the reason for setting the cruise control at a speed lower than the speed limit, the accused said it was just a comfortable speed for him to drive.[337]

    [335] T477.

    [336] T478.

    [337] T478.

13. As to his phone call with Mr Albury, the accused said he was explaining to his supervisor what he surmised had happened, but at no stage prior to the accident did he think he was at risk of falling asleep.[338] In respect of his conversations with police officers Constable Davies and Sergeant Mowday, he had no specific recollection of the detail of those conversations, and no recollection of having spoken with Sergeant Mowday at all.[339] He clarified that after the rollover he was trying to piece together, in his own mind, how it had occurred and he had surmised that he must have fallen asleep as there was no other ready explanation for the vehicle rollover.[340]

    [338] T481.

    [339] T481-482.

    [340] T482-483.

14. The accused denied that on the morning of the accident, he knew he was fatigued, and that he realised that in continuing to drive he was at risk of falling asleep.[341]

    [341] T485.

    Assessment of the accused’s evidence

15. The accused presented as an honest witness who whilst distressed by the accident and death of his patient, gave his evidence clearly and thoughtfully. He made appropriate concessions during his evidence. I am satisfied that the accused’s report of his sleep during the prior week was largely accurate as it was linked to his long held sleeping habits, and it was compiled not only from his memory and habits but also with reference to information from his taskings and mobile telephone usage. Whilst Professor Dawson said that it is difficult for an individual to accurately record his or her sleep, he conceded that if someone has a routine, it makes it easier to remember when they have slept.

16. More specifically, I am satisfied that in the 24 hours prior to his night shift on 15 August 2016, the accused slept from 10.00 pm to 6.00 am the previous night and from 11.00 am to 4.00 pm earlier that day. I have not overlooked Professor Dawson’s evidence that the accused’s reported 5-hour sleep during the afternoon was unlikely given his 8-hour sleep overnight unless he had a significant sleep debt. However, I am satisfied of the accused’s evidence that he had a particular recall of that period of sleep because it was his last before the accident, and his wife commented to him on its unusual length. Further, the accused’s mobile telephone usage did not contradict or undermine his evidence on this topic.

17. I also accept the accused’s evidence that at no time during his night shift did he feel drowsy or sleepy or did he realise that he was at risk of falling asleep, and that at the time of driving towards the accident scene, he felt tired but as normal as he did when driving at any other time during a night shift. The accused’s account of the level of tiredness he experienced immediately prior to the accident was supported by Mr Roesler’s evidence that the accused showed no signs of tiredness or fatigue throughout the shift, nor did he express any feelings of tiredness. The accused was in the company of Mr Roesler throughout the evening and interacted with him on the trip to Coonamia, at the patient’s home and at Port Wakefield within an hour of the accident. I am fortified in this view by the evidence of Mr Drayton, who described the accused as reliable and conscientious and as a person who did not take risks in the course of his work, or ‘cut corners’ or act dangerously or carelessly.

18. The accused’s evidence that he did not feel drowsy or sleepy whilst driving, or any more tired than during any other night shift was also supported by the evidence of Professor Reynolds. Professor Reynolds considered it plausible that the accused would be unaware of his undiagnosed condition of sleep apnoea and a person suffering from severe sleep apnoea may not experience feelings of tiredness whilst awake.

19. I have had regard to the criticisms made by the prosecution of the accused’s evidence, none of which individually or cumulatively caused me to doubt the honesty or accuracy of his evidence. 

    Professor Reynolds

20. Professor Reynolds also gave evidence as part of the defence case.

21. Professor Reynolds is an accredited respiratory and sleep physician.[342] He said that the accused consulted him about possible sleep apnoea earlier this year. He said the accused did not complain of any excessive daytime sleepiness.[343] The accused underwent a sleep study and tests, and after having considered all the material, Professor Reynolds diagnosed the accused as suffering from severe obstructive sleep apnoea.[344] Professor Reynolds said that during his initial consultation, the accused was unaware that he was suffering from sleep apnoea, which he considered plausible.[345]

    [342] T493.

    [343] T504.

    [344] T496-497.

    [345] T503.

22. Professor Reynolds said that obstructive sleep apnoea relates to the closure of the upper airway and is typically associated with snoring, and reduced airflow which limits breathing capacity.[346]  He formed the view that the accused was probably suffering from severe obstructive sleep apnoea in August 2016, because the accused’s medical history and body weight had not changed since 2016, nor had there been any significant changes to his medication.[347]

    [346] T497.

    [347] T497.

23. Professor Reynolds explained that obstructive sleep apnoea occurs as a person goes to sleep, and the muscles in the back of the throat collapse and narrow, limiting the airflow through the back of the pharynx.[348] He said in overweight people, there tends to be a mass effect squashing the upper airway, so when the airflow drops below a certain level, the oxygen levels in the blood can dip down.[349] A person’s effort to overcome the obstruction can lead to a brief arousal, which then puts tone back in the upper airway and helps a person to briefly overcome the obstruction.[350]

    [348] T497-498.

    [349] T498.

    [350] T498.

24. Professor Reynolds said that an apnoea is a reduction in airflow, and an indicator of sleep apnoea is the number of apnoea that happen per hour. Less than five events per hour is normal; between five and 15 events is generally considered mild sleep apnoea; above 20 events per hour is typically considered moderate to severe sleep apnoea; and over 30 events per hour is considered severe sleep apnoea.[351]

    [351] T498.

25. Professor Reynolds gave evidence that in his experience, some patients with severe sleep apnoea do not know they suffer from the condition. They may report no or few symptoms, and they may not experience sleepiness when awake.[352] He said the relationship between the severity of the number of obstructions per hour and the person's perception of sleepiness is very imprecise and variable.[353] He said that testing had demonstrated that some patients diagnosed with severe sleep apnoea and impairment genuinely believed that they were not sleepy or fatigued.[354]

    [352] T498.

    [353] T499.

    [354] T499.

26. Professor Reynolds said a microsleep results in decreased alertness and may develop into actual sleep.[355] He said a person experiencing a microsleep can appear to be awake and yet be unable to respond.[356] He said that it may appear to a casual observer that the person is awake but if you were observing with a trained eye, you might see subtle differences in blinking or drooping of the eyelids. He said to the untrained observer, those signs would be easily missed.[357]

    [355] T499.

    [356] T499.

    [357] T499-500.

27. Professor Reynolds said that a patient suffering from severe sleep apnoea may have a microsleep or a series of microsleeps resulting in a motor vehicle accident.[358]  He said that you can suffer a series of microsleeps in succession over a short period of time.[359]  He said a microsleep can happen anywhere, however, it is more likely in passive, boring situations rather than in active situations. He said a microsleep can occur suddenly and without any warning to the person.[360] He said a person suffering obstructive sleep apnoea could have had a microsleep in the past without even realising it.[361]

    [358] T500.

    [359] T500.

    [360] T500.

    [361] T500-501.

28. Professor Reynolds gave evidence that in the time leading up to a microsleep, a person may have diminished or compromised consciousness, whereby the patient appears to be awake but is unable to respond to stimuli.[362] The patient may be unaware of his compromised consciousness, and oblivious to the onset of such a condition.[363] As to whether a microsleep and diminished or compromised consciousness are separate, Professor Reynolds said it is all part of the same spectrum.[364] A person’s loss of consciousness or inability to respond to stimuli is part of a transition from being awake to asleep and is all part of the process of drifting off to sleep.[365] He said it is a transition process which can occur without warning to the patient.[366] He said the patient may be driving along one moment, and appear awake, but in fact be unable to respond to stimuli as they have diminished or compromised consciousness leading into a microsleep.[367]

    [362] T501.

    [363] T501-502.

    [364] T515.

    [365] T515.

    [366] T515.

    [367] T515-516.

29. Professor Reynolds agreed it was reasonably possible that in the period before the ambulance left the road, the accused experienced a microsleep, or compromised consciousness transitioning to a microsleep, such that he lost voluntary control of the vehicle without first experiencing any warning signs of the onset.[368] He agreed that it would follow that the accused was unable to control the vehicle during this time, and his driving was involuntary.[369]

    [368] T516.

    [369] T516-517.

30. In cross-examination, Professor Reynolds agreed that in the lead up to the vehicle rollover, the accused’s body clock would have been disrupted by shift work, and combined with his diagnosis of significant obstructive sleep apnoea, he was of the view that the accused was likely to be fatigued during that evening.[370] However, he gave evidence that an individual’s perception of  his own level of fatigue varies considerably from person to person.[371] Individuals who have suffered from sleep apnoea for some time, and who regularly work shift work, may become habituated to feeling more fatigued than the average person, but consider that level of tiredness normal.[372] He said that a person may become used to a feeling of general fatigue and may not have perceived it as being undue fatigue because they have become habituated to the feeling.[373]

    [370] T517.

    [371] T517.

    [372] T517.

    [373] T518.

31. Professor Reynolds agreed that a person who has done nine shifts in 12 days and doesn’t suffer from apnoea will most likely have a feeling of being tired.[374] He agreed that shift work can cause fatigue and apnoea can cause fatigue.[375] He agreed the accused could have been fatigued due to shift work, or due to apnoea, or due to a combination of both.[376] He agreed that obstructive sleep apnoea will generally render a person more tired. However, he said the relationship between obstructive sleep apnoea and the patient's perception of sleepiness, is a very loose association.[377] He said you can have a person who has very severe sleep apnoea, but that person will report that they fall within the normal range in terms of their sleepiness and tiredness.[378] He said that fatigue is a subjective sensation and there is no objective measure of the accused’s sleepiness or fatigue on the night, only his report.[379]

    [374] T520.

    [375] T520-521.

    [376] T521.

    [377] T517, 519.

    [378] T519.

    [379] T521.

32. Professor Reynolds did not think it implausible that the accused’s first event involving a microsleep or compromised consciousness resulted in a vehicle rollover.[380] He said sleep apnoea can go unnoticed and is likely to become worse over time with increasing weight and age, as well as the added disruption of shift work, which may have been the trigger that brought on this event.[381] Further, he said that the accused would not necessarily have been aware of any earlier event, nor would an observer, if there had been no consequence such as a vehicle rollover.[382]

    [380] T523.

    [381] T523.

    [382] T522.

33. Professor Reynolds agreed with Professor Dawson’s opinion that it was probable that the sleep/wake cycle disruption and the shifts relevant to the accused’s schedule would make a person fatigued or significantly fatigued.[383] He agreed that the accident occurred at a low point in the accused’s circadian rhythm which is of significance in terms of a person's ability to stay awake.[384] However, he clarified that the accused had been doing shift work for a long time and he may have become used to any feelings of tiredness and felt that it was normal.[385] He said that the accused would not necessarily have been aware of his level of fatigue.[386]

    [383] T526.

    [384] T527.

    [385] T531.

    [386] T532.

    Findings

34. The issue in dispute at trial is whether the prosecution has proved beyond reasonable doubt the second element of each offence, namely that the accused was driving dangerously. There is no dispute as to the other elements of each offence having been established, and I am so satisfied.

35. For the accused to be guilty of driving in a manner dangerous to the public due to his fatigue or tiredness, the accused’s condition must be such that as a matter of objective fact, continuing to drive in that condition was dangerous to the public. The accused’s driving is dangerous if it involves a real risk of injury to others, which is greater than the ordinary risks of the road and which amounts to a danger to the public.  Put another way, the prosecution must establish that a reasonable person in the situation of the accused ought to have realised that driving in his tired or fatigued condition was dangerous to the public, given the risk of falling asleep.

36. By way of a preliminary finding, I am satisfied on the whole of the evidence that the accused did fall asleep or lose consciousness shortly before the vehicle first left the bitumen road and before the vehicle rollover. I have reached that conclusion largely because of the accident reconstruction evidence. Sergeant Fulcher gave evidence that the ambulance tyre marks indicated that the vehicle had drifted off the bitumen road rather than swerved because they revealed a gradual movement by the ambulance from the bitumen rather than a sudden one.  He said that if the vehicle had swerved, you would expect to see a much steeper angle in the tyre marks.  Sergeant Fulcher said that there was no evidence of any steering input prior to the ambulance reaching the median grass strip consistent with a driver not paying attention to the task of driving. Further, there was no other apparent cause of the vehicle leaving the road. There was no suggestion of an intervening distraction. The ambulance was in good condition prior to the incident and there was nothing mechanically wrong with the vehicle which could have contributed towards or caused the vehicle to leave the road or the vehicle rollover.

1. I have also placed some reliance on the accused’s statements after the accident that he believed he had fallen asleep as relevant to the question of whether there is any other plausible cause for the accident, expecting that if there was such a cause which was within the accused’s knowledge, he would have referred to it. On the whole of the evidence, I am satisfied that the accused fell asleep or lost consciousness at a time sufficiently contemporaneous with the ambulance leaving the bitumen road and the vehicle rollover.

2. The conclusion that the accused fell asleep shortly before the vehicle left the bitumen road and before the vehicle rollover only takes the matter so far. That finding alone does not prove that the accused’s driving was dangerous. The question is whether a reasonable person in the situation of the accused ought to have realised that he was so tired or fatigued that to continue driving in that condition was a danger to the public, given the real risk of falling asleep. That in turn requires an assessment of the accused’s level of tiredness and fatigue at a time contemporaneous with the vehicle leaving the road, and whether the prosecution has proved that there was a departure by the accused from acceptable standards of driving in continuing to drive the ambulance in his condition, and the gravity of any departure by the accused from the standards expected of an ordinary prudent driver.

3. On the whole of the evidence, I am not satisfied that the accused’s driving was objectively dangerous or that a reasonable person in the situation of the accused ought to have realised that he was so tired or fatigued that to continue driving in that condition was a danger to the public, given the real risk of falling asleep. This is not a case where a reasonable person in the situation of the accused ought to have realised that he was at risk of falling asleep because he had some direct warning of drowsiness or sleepiness, or because of the length of time he had driven without rest, or by reason of his lack of sleep in the preceding hours or days, or because of the conditions under which he was driving. I have reached that conclusion for the following reasons.  

4. First, the accused was not driving for an extended time prior to the vehicle rollover. He left Coonamia at 12.39 am on 16 August 2016. He stopped outside of Hope Gap at 1.09 am for a couple of minutes. He then stopped at Port Wakefield at 1.49 am for about 15 minutes, where he used the toilet facilities and consumed some food and drink. The vehicle rollover occurred at about 2.50 am. Accordingly, the accused commenced his journey a little more than two hours before the accident. He had stopped twice during that time, and he had only been driving for between 40 to 45 minutes before the vehicle left the road.  That needs to be contrasted with a person who had been driving throughout the night, or for many hours, or at least for longer than the recommended two-hour period of driving without stopping. 

5. Second, the accused had slept for 13 of the 24 hours prior to the start of his night shift on 15 August 2016. That is, more than the recommended amount of sleep. He had been awake for only 10.5 hours (in the context of a 12-hour shift) at the time of the vehicle rollover. Further, from 8 August 2016 to 15 August 2016, the accused had slept for a ‘reasonable’ or ‘ample’ amount of time during each 24-hour cycle (as described by Professor Dawson), and appeared to have consistently obtained the recommended amount of sleep of five hours or more. 

6. Third, I accept that the accused had no direct warning that he was at risk of falling asleep by experiencing drowsiness. The accused gave evidence, which I accept for the reasons outlined earlier, that he was not feeling any more tired during this shift than any other night shift, and he was not feeling fatigued or drowsy. As to the accused’s statements to Mr Albury that he ‘thinks he fell asleep’ and that he ‘stopped at Port Wakefield and got a coffee to keep me going’, I consider it tenuous to infer from those statements that at a time prior to the vehicle leaving the bitumen road, the accused in fact realised that he was so tired or fatigued that he was at risk of falling asleep. I consider the accused’s statements to be equally consistent with him surmising as to the cause of the vehicle rollover, in the context of there being no other explanation apparent to him, and expressing his surprise as to the accident given that he had stopped at Port Wakefield for 15 minutes before resuming his journey. Similarly, I consider the accused’s statements to Constable Davies and Sergeant Mowday that he ‘fell asleep’ to be equally consistent with the accused surmising as to the cause of the vehicle rollover.

7. Fourth, the prosecution placed considerable reliance on the evidence of Mr Graham. I accept Mr Graham’s evidence was truthful and accurate as to his observations. However, I do not consider that evidence strengthens the prosecution case. Mr Graham’s description of the accused’s driving was equally consistent with the accused inadvertently taking the bend too widely in order to avoid a semi-truck, as the accused explained was his practice. In respect of his driving behind the road trains, it was equally consistent with the ambulance being buffered by the wind effect of travelling behind two road trains. Neither Mr Roesler nor Ms Jasper observed or felt any unusual or erratic movements of the ambulance in the lead up to the vehicle leaving the road. Mr Graham made no observations of any other transgressions by the accused for the remainder of the time that he had the ambulance within view. I am not satisfied that Mr Graham’s evidence supports a conclusion that the accused lost concentration due to his fatigue or that the accused would have necessarily been aware that he had momentarily strayed over the white line or that he was for a short time moving from side to side in his own lane. Given the equivocal nature of the evidence, it provides no support for the prosecution case that the accused was so fatigued as to have lost concentration shortly before the accident, or that he received warning as to the onset of sleep. 

8. Finally, I cannot exclude as a reasonable possibility that the accused was tired, but not significantly tired or fatigued, and fell asleep without warning because of an undiagnosed condition of sleep apnoea.  I am satisfied on the evidence of Professor Reynolds that the accused was likely to have been suffering from an undiagnosed condition of severe sleep apnoea at the time of the accident; and that the accused, like other patients with severe sleep apnoea, did not know he suffered from the condition and did not necessarily experience drowsiness whilst awake.

9. In reaching this conclusion, I have not overlooked Professor Dawson’s evidence that the accused would have been at least very fatigued, and Professor Reynolds’ evidence that the accused would have been fatigued, at a time shortly before the accident because of his ‘onerous’ work schedule during the preceding 12 days which involved working both day and night shift, and because he was driving at a time when his body clock was saying he should be asleep. I have also taken into account that the accused was driving a heavy vehicle at night and was seated within a heated cabin having activated cruise control. However, ultimately, I was not persuaded by the evidence considered in its entirety that the accused was experiencing the significant level of fatigue referred to by Professor Dawson because that opinion is contradicted by others’ observations of the accused that evening, and by the evidence of the accused. Nor am I satisfied on the evidence looked at as a whole that a reasonable person in the situation of the accused and experiencing some tiredness as described by the accused ought to have realised that he was at risk of falling asleep, for the reasons outlined above, namely, the short period of time he had been driving, the rest stop he had taken about 45 minutes prior to the accident, the amount of sleep had by the accused in the preceding 24 hours, and my findings that there was no warning to the accused as to the onset of sleep.

10. In any event, I am also not satisfied that the prosecution has negatived the defence of honest and reasonable mistake. For the reasons outlined earlier, I accept the accused’s evidence that he did not feel drowsy or sleepy, and that he did not realise that he was at risk of falling asleep at any time that evening, and more particularly when driving towards the accident scene. On the basis of the accused’s account, as supported by the other evidence outlined earlier, I am satisfied that the prosecution has not disproved the accused honestly believed that it was safe for him to continue driving in his condition, and that he was not at risk of falling asleep.  Moreover, I am satisfied that the prosecution has not disproved that he held this belief on reasonable grounds. I consider that to be so because of the limited time during which he had been driving, that he had stopped about 45 minutes prior to the accident, the amount of sleep had by the accused in the preceding 24 hours, and my findings that there was no warning to the accused as to the onset of sleep. Accordingly, I am not satisfied the prosecution has negatived the defence of honest and reasonable mistake

11. As to the alternative verdicts of Aggravated Careless Driving (count 1) and Careless Driving (counts 2 & 3), I am not satisfied that the prosecution has established that the accused failed to exercise the level of care a reasonably prudent driver would exercise in continuing to drive the ambulance after Port Wakefield bound for the RAH. I do not consider that the prosecution has proved beyond reasonable doubt that the accused continuing to drive in his condition involved a departure from the standards required of an ordinary prudent driver. I have reached that conclusion for the same reasons for finding that the driving was not objectively dangerous outlined earlier. To my mind the prosecution has not established that the accused departed from the standards required of a reasonably prudent driver in continuing to drive in his condition after having left Port Wakefield.

12. Nor am I satisfied that the prosecution has negatived the defence of honest and reasonable mistake in respect of the alternative charges for the same reasons outlined earlier in respect of the charged offences.

13. I wish to make clear that my verdicts in this case cannot and should not detract from the tragic nature of the vehicle rollover and the terrible consequences of that accident for Mrs Biddell, her daughter, Ms Jasper, and their families, as well as for Mr Roesler.

    Verdicts

14. I find the accused not guilty of each charged offence and not guilty of the alternative offences.