R v Parkin - [2011] SADC 80

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PARKIN
Criminal Trial by Judge Alone
[2011] SADC 80
Reasons for the Verdict of His Honour Judge Barrett
27 May 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
The accused pleaded not guilty to a charge of causing serious harm by dangerous driving. He pleaded guilty to a charge of aggravated driving without due care, but prosecution does not accept the guilty plea in answer of the Information. The accused drove his utility around a corner on an unsealed road at an excessive speed. As a result the utility swerved causing one of the three unsecured passengers in the back to fall off and suffer serious injuries.
Held: While the speed was excessive in the circumstances it did not amount to driving at a speed or in a manner which was dangerous to the public. Found guilty of the alternative charge of aggravated driving without due care.
Road Traffic Act 1961 s 45; Criminal Law Consolidation Act 1935 S 19A(3), referred to.
R v Kroom (1990) 55 SASR 476; R v Kamleh (1990-1991) 159 LSJS 268; R v S (1991) 22 NSWLR 548, considered.

R v PARKIN
[2011] SADC 80

The accused has pleaded not guilty to a charge of causing serious harm by dangerous driving. He pleaded guilty before me on 29 April 2011 to a charge of aggravated driving without due care, but the prosecution does not accept the guilty plea in answer of the Information. Hence the trial proceeded on the charge on the Information. The accused has elected to be tried by Judge alone.
Background
The disputed charge arises out of driving by the accused at Rapid Bay on the evening of Saturday 21 February 2009. The accused drove his utility around a bend at Rapid Bay. One of his passengers on the tray of the vehicle fell off and was seriously injured. In the morning of that day the accused, his sister and three friends had travelled to Rapid Bay to spend the weekend camping. The accused had driven his Toyota Utility there and one of the friends, Jason Hughes, had driven his car.
After buying supplies at Yankalilla, the group set up camp in the caravan park at Rapid Bay. They had a BBQ lunch there and played cricket with a neighbouring family group. The accused and his friends were drinking beer. Mr Felgate, the head of the toxicology section of the SA Forensic Science Centre gave evidence that on the basis of assumptions he made the accused would have had a blood alcohol content of about .06 percent at the time of the driving if he had nothing to drink after the accident, and between .04 and .05 percent if he had, as he told the police, consumed half a stubbie of full strength alcohol after the accident.
Mr Richard Smit, the man injured in the incident, had a blood alcohol content of .13 percent, although it is not clear when the blood sample was taken. Other evidence suggests that Mr Smit had more to drink than others in the group.
At around 7.50pm, as it was becoming dark, the group decided to go to the jetty at Rapid Bay. The jetty is a few hundred metres away from the caravan park. The accused drove his Toyota utility with Ms Georgia Beven as the front seat passenger and the three other members of the group on the tray of the utility. There are different accounts about where people in the back were sitting. One account has Mr Smit sitting on the front passenger side of the tray, another has him on the driver’s side, and yet another has him sitting at the back of the tray in about the middle.
The accused made his way out of the caravan park and turned right heading towards the sea. The evidence differs about the correct compass points. I think Mr Colgan, the part-time caretaker of the caravan park, is probably right when he says that the view out to sea at Rapid Bay is north, but I will assume that as the accused drove towards the sea, he was driving west. All other witnesses assumed that. Immediately after he turned right the road becomes an unsealed road rather than bitumen.
Photographs taken at the time show that the road was somewhat corrugated from the exit from the caravan park. It is agreed that the distance between the exit from the caravan park and the likely location where Mr Smit fell off the utility is about 141 metres. Unfortunately there is no agreed fact or evidence about the distance between the caravan park exit and the left hand bend leading towards the jetty.
It is the accused’s driving around that corner and immediately after that is the subject of the charge. The Crown case is essentially that the accused drove around the corner too fast for the road conditions and that the accused deliberately swerved the utility in a fish-tail motion so that, as a consequence, Mr Smit was thrown from the utility and suffered significant injuries. The principal injury was an internal chest injury which was life threatening in that it compromised Mr Smit’s breathing.
The defence case is that the accused did not deliberately cause the fish-tail movement of the utility. Further, in negotiating the bend, he was not driving dangerously. The plea of guilty to driving without due care is on the basis that he drove around the corner at a speed which was too high for the road conditions and as a consequence the utility swerved.
The Crown called the accused’s four passengers and witnesses to the incident who were in the caravan park. Three of those witnesses, Peter Bowden, Tony Taylor-Harris and Jarryd Sullivan were members of a single camping group. Mr Mark Colgan was a part-time caretaker of the caravan park.
The scene of the accident was not preserved by police so the Crown was not in a position to call Major Crash Investigators to give expert evidence of how the accident occurred. The ambulance and police were called to the scene but by the time the police arrived other traffic had passed through the accident scene and the accused had moved his utility. In fact he and his passengers were leaving the caravan park intending to go to the hospital where Mr Smit had been taken by helicopter. The accused was spoken to by police at the scene. A video record of interview was conducted with him at the Parks Police Station on 15 May 2009. The accused answered all of the police questions. At trial he exercised his right not to give evidence.
Crown witnesses
The prosecution called all four of the accused’s passengers. The injured man, Mr Smit, was in the back of the utility, but has no recollection of the incident.
Ms Georgia Beven was in the passenger seat in the cabin. The accused’s sister, Megan Parkin, and his friend Jason Hughes, were in the tray in the back.
I say at the outset that I do not accept the evidence of the three passengers who gave evidence of the event insofar as their evidence describes the accused’s driving. They all said that the driving around the corner was unexceptional. No one speaks of the utility sliding at all. None speaks of the passengers in the back sliding around the tray. None speaks of the driving as other than completely normal without any excessive speed.
I reject that evidence for three main reasons. First, it flies in the face of the defendant’s guilty plea to driving without due care. Second, it is inconsistent with the accused’s own admission to the police that he went into the corner too fast, causing the back of the utility to slide out. Third, the evidence does not explain how Mr Smit came to fall off the left hand side of the utility. Plainly on any view the vehicle slid out to the right as it rounded the left hand bend. Some force to the left must have caused the defendant to fall out of the utility. It was not the swing to the right, because if it had been that, he is likely to have been struck with the utility as it corrected back to the left. The fall might have been caused by a sharp swing back to the centre of the track ahead, but I think it is more likely to have been due to either a subsequent swing to the left of centre or a swing back from the left to either the centre or to the right again.
In the light of the accused’s admissions to the police and the evidence of the witnesses from the caravan park, I am completely satisfied that the utility moved in a fish-tail like manner, with the back wheels sliding first to the right of centre, and then to the left of centre. Whether there were further swings from the centre is more contentious. The force and extent of the swings is contentious. It is also not so clear what was the accused’s state of mind. Was he deliberately manoeuvring in this way, or was it the unintentional result of his misjudging the safe speed to negotiate the turn?
I reject the passengers’ evidence that the driving around the corner was normal and uneventful.
The passengers’ evidence is relevant on two further topics. One is the defendant’s consumption of alcohol. The other is the place and circumstances of the passengers sitting in the tray of the utility. Where and how Mr Smit was sitting assumes some importance.
I deal first with the question of the accused’s consumption of alcohol. It is uncontentious that the accused was drinking beer. It is likely it was full strength beer and he was drinking from stubbies. The witnesses spoke of him not drinking a great deal. They speak of Mr Smit drinking more than the accused. One witness speaks of Mr Smit being intoxicated. Several witnesses, including those in the caravan park, say that the man on the tray of the utility, who must have been Mr Smit, was holding a stubbie of beer while travelling along.
The accused’s sister said that she saw the accused drink one or two beers. Mr Hughes said he saw the accused drink a beer. The accused was in his view, fine to drive.
Ms Beven did not see the accused drink at all. In her view the accused was normal or 0 on a scale of intoxication from 0 to 10. None of the witnesses spoke of the accused drinking alcohol after the incident. Only the accused’s sister was asked whether he did drink after the incident. She said that she did not see him do so. The accused told the police he drank half a stubbie of full strength beer after the incident.
Mr Felgate, the toxicologist, gave evidence of the accused’s likely blood alcohol reading at the time of the driving. Relying on information supplied to him he estimated the accused’s blood alcohol at 7.50pm, the approximate time of the incident, at approximately .06 percent. To arrive at that figure he assumed the correctness of two agreed facts (numbers 1 and 2 of Exhibit P12). The accused returned a reading of .048 from a breath test taken at 11.47pm on 21 February and a reading of .015 from a blood test taken from him at 1.45am on 22 February. Mr Felgate also assumed that the accused had his last drink at 7.30pm, ie before the incident. In cross-examination, Mr Felgate was asked what would have been the likely reading if the accused had, as he told the police, drunk half a stubbie of full strength beer after the incident. Mr Felgate said that the reading could then have been between .04 and .05 percent.
Mr Felgate said that the ability to drive a car would not be greatly affected at levels below .05 percent, except for complex driving tasks. Even at low levels, by which I take Mr Felgate to mean below .05 percent, some people become less inhibited and take more risks on the road. I note that the accused was a learner driver. As such he should not have been driving with any concentration of alcohol in his blood.
I am unable to make a finding about whether the accused did drink alcohol after the incident. It would certainly have been an extraordinary irresponsible thing for him to have done. He knew that he had been drinking before the incident. He knew that he should not have been driving with any concentration of alcohol in his blood. He knew he had at least misjudged the safe speed at the corner. He knew his friend had fallen off the utility and was injured sufficiently to require an ambulance to be called. He, like everyone else, was unaware of the seriousness of Mr Smit’s injuries.
In his Record of Interview the accused said that he did drink half a stubbie of full strength beer after the incident. The statement to the police is not sworn evidence. It was not the subject of cross-examination by the interviewing officer, much less by counsel in court. A fact finder is entitled to give more weight to inculpatory statements in such an interview than exculpatory ones. It is not clear how to categorise the accused’s statement about drinking after the incident. It is exculpatory in the sense that it tends to lower his blood alcohol content at the time of the driving but inculpatory insofar as it suggests a high degree of irresponsibility.
On the evidence I have heard I am simply unable to make a finding about whether the accused drank any alcohol after the incident. I find that when he drove around the corner he had a blood alcohol content of between .04 percent and .06 percent.
The other respect in which the passenger’s evidence is relevant is the seating on the tray of the utility. There are two aspects to that question.
The first is where on the tray Mr Smit was sitting. Ms Parkin has him behind the driver’s side cab. She thought he was looking backwards. That would mean he went across the whole of the tray before falling out.
Mr Hughes says that Mr Smit was sitting with his back to the cab on the passenger side. Hughes says that he himself was sitting in the corresponding position behind the driver. He says he was hanging on to the mesh behind the cab, but is not sure whether Mr Smit was doing likewise.
Two of the caravan park witnesses speak of Mr Smit’s position on the tray. Mr Sullivan says he saw the man who must have been Mr Smit holding on to the top of the mesh behind the cab. That would suggest that Mr Smit was possibly standing or kneeling, because the top of the mesh extends slightly above the roof of the cab. Mr Sullivan was not asked any questions about that. Mr Bowden says that Mr Smit was sitting with his back to the tailgate facing forwards. He was on the driver’s side.
Mr Colgan did not give evidence about where Mr Smit was before the incident except to say that the occupants of the tray were tumbling around as the utility fish-tailed along the road.
Other things being equal, one might think that the two passengers in the tray would be better placed than the caravan park witnesses, to observe and remember where Mr Smit was before the incident. They were right there. However they contradict each other. Generally I was favourably impressed by the witnesses Sullivan and Bowden, but they are not in agreement on this topic. I am unable to find where Mr Smit was in the back of the utility, but I think he was sitting rather than standing or kneeling.
There is another aspect to the position of the passengers on the tray. In his interview the accused says that there was a mattress in the back of the tray but he does not say whether it was inflated or whether people were actually sitting on it. Ms Parkin was adamant that the passengers were sitting on the inflated mattress which came about two-thirds up the sides (and the back) of the tray. It covered almost all the tray. There was only room for a foot to be placed on the tray at the edges of the mattress. She indicated on photograph Exhibit P7 how far up the sides the mattress came. If that were so, there would be little of the side of the tray to stop someone falling off. On the other hand, if the passengers were sitting on the tray itself, one would think that it would have taken greater sideways force to cause someone to fall off. The tray sides would afford some protection. Mr Hughes did not recall a mattress. Ms Bevan gave no evidence on the topic.
Only one of the caravan park witnesses was asked about the height of the passengers. Mr Bowden said he could not tell whether Mr Smit was sitting on anything on the tray.
Thus the principal witnesses on the topic of the mattress are Ms Parkin and Mr Hughes. The former is adamant that the passengers in the back were sitting on a mattress, the latter does not recall a mattress. One might have thought a passenger in the back of the utility would have remembered if he was sitting on an inflated mattress coming two-thirds up the side. It meant he was vulnerable to fall off. On the other hand Mr Hughes says he was holding on to the mesh at the front of the tray. Perhaps he felt sufficiently secure by that means, not to notice the danger that the mattress posed.
While I have concluded that Ms Parkin, along with the other passengers, has understated the circumstances of the utility’s driving around the corner, I do not conclude that she was deliberately misstating the evidence of the mattress. Although I am not able to find positively that Mr Smit was sitting on an inflated mattress, he might have been. Ms Parkin may not be mistaken. If she is correct then the accused had to take even greater care in his driving around the bend. If his passengers were sitting on an inflated mattress, they were vulnerable to falling off the tray by any untoward sideways movement going around the corner. A relatively slight sideways movement could dislodge one of them.
I move now to the evidence of the driving. I have already found that the passengers have understated what is really a dereliction of care by the accused in driving around the corner. The accused admitted to the police that he was going too fast as he entered the corner. These are the passages of the accused’s interview relating to that topic.
AYeah, well as I was turning left around the second corner I obviously gave it a little bit too much and went slightly sideways and as I corrected I believe that’s when Richard came out of the vehicle.
QRight okay, so your, you’ve come out of the caravan park turned right and your driving down a bit that heads towards the beach and there’s a left hand bend?
AYep.
QDo you know how far that is from there to the bend. Any ides?
AOne hundred and fifty metres, maybe more.
QOkay, can you say, do you know how fast you were going between the caravan park exit and the bend. Got any ides?
AI was in second so I wouldn’t be going more than thirty I don’t think.
AAlright, so what’s happened as you’ve come around the left hand bend, do you whereabouts on the road you were at that stage, as you’ve come into the bend?
AI think we were just exiting the bend, well, yeah …
QAlright and you mentioned… “I gave it a bit too much”. What do you mean by that?
AI gave it too much accelerator.
QAlright and witnesses have described to us that, as the utility went round the bend, it fishtailed. Is that a proper … true statement or …
AI wouldn’t say fishtailed.
QDo you know many times the back end would have slid or …
AWent out once, then came back and it was straight again.
QAlright. So you’re saying that as you’ve come round turned left it’s cone out to the right?
AYeah, tale end has gone to the right, then slightly to the left, then centred.
QSo we’re not talking … what you’re describing is not a constant fishtail, what you’re describing is a one slide out to the right, back to the left, then straight again?
AYeah.
QOkay. Can you say how far off of ninety degrees it went out to the right, then left, any idea?
AI couldn’t tell you, no.
QAlright. As you’ve come into that bend you’re saying you were doing, you think about thirty kilometres per hour?
AYes.
QAlright. Now in the back with … you’ve got Megan, Jason and Richard, is there anything else in the back of the ute at that stage?
AThere was an air mattress and fishing gear.
QAlright, are we talking about the whole bottom of the tray being completely covered in with stuff or bits and pieces or …?
ANo, it’s just pretty much in the middle.
QAlright. Now the road leading up to the bend and the bend itself and all that, can you describe that road to me, what condition its in?
AIt’s just loose gravel, pretty much.
QAre you prepared to say or is it a correct comment from me to allege to you that it wasn’t that loose gravel that caused you to slide, it was you going a little bit too fast?
AWell, I think it was a combination.
…
QAnd was due, not to a deliberate action, just the fact that you think that you just gave it a little bit too much power as you went around?
AYep.

The caravan park witnesses do not speak with one voice about what they saw. There is however a marked difference between what the part time caretaker, Mr Colgan says he saw and what the three members of the one camping party say, ie Messsers Sullivan, Bowden and Taylor-Harris.
Mr Colgan says that at about 5 o’clock he took a coffee break from his duties as caretaker. He was very conscious of bad behaviour by campers. He spoke of the sorts of behaviour he has had to police. He was standing at the south-eastern part of the caravan park and he had a clear view of the subject corner. He says he heard the utility’s motor being wound up. He said that the utility went through at least three gears (it has five gears). He said the speed of the utility going around the corner was 60 to 70 kilometres per hour “if not more”. He saw the utility fishtail twice. The second fishtail motion was sharper than the first. After the first motion he saw the driver turn around in his seat and smile at the back passengers. He described the second motion in these terms:
I watched the driver turn around while he was driving like this (indicates) and smiles. Then I watched him – that was on the first fishtail. When he looked back it was like he hadn’t done enough, so he’d give it a bit more and done another sequence of fishtails and it was the second flick was when the victim rolled out of the vehicle. It wasn’t on the first drift when he came back towards the quarry after the first drift. He continued in a swerving motion and it was the second time when the gravity towards the passenger side of the second twist threw the passenger out. I watched him survive the first twist, the passenger in the back.
In cross-examination he said:
I’ve seen them hit that corner a lot harder than that. He, he – it was like the first one was a little bit of a drift and it wasn’t enough so he powered on and give it a bit more of a shake (indicates).
Mr Colgan clearly formed the view that the driver was deliberately swerving the vehicle to shake his back passengers. He saw Mr Smit fall out about 40 metres beyond the corner. He said that he noticed that Mr Smit was left alone sitting on the road for about 10 minutes. No one was with him. Later he volunteered that there arrived at the scene 14 police cars, two paramedic teams, a fire truck and then the helicopter. Certainly police did arrive. No one else was asked about the number of police vehicles that arrived. There was certainly evidence of two ambulances and Mr Smit was airlifted by helicopter. It would certainly be surprising if there were 14 police cars present.
The significant difference between Mr Colgan’s evidence and that of the three campers from the caravan park is the high speed of the utility and the evident deliberateness of the driver’s swerving motion. I find it surprising that the witness would have been able to see the driver turning around and smiling. Despite Mr Colgan’s estimate of the time of the incident at 5 o’clock, he himself agrees it was just getting dark. It is really common ground among the witnesses that the incident occurred at 7.50pm. The utility cab had headrests behind the two seats. There was iron mesh behind the back window. There were three passengers in the back. It is common ground that the car caused dust to rise as it went round the corner. Mr Colgan was about 30 metres from the utility. Taking all those factors into account I think it unlikely that someone in the caravan park would have been able to see the driver’s head even if he did move it sideways from the headrest to look back.
The other witnesses were more moderate in their descriptions of what they saw. I bear in mind that they all came from the same group. That may mean that they have discussed the matter amongst themselves and perhaps unconsciously come to a similar account. That said, I found each of them gave his evidence in a straightforward manner with no evident signs of bias or collaboration or exaggeration.
The first of them to notice the utility was Mr Taylor-Harris. He said his attention was drawn to the utility because of its speed. He did not estimate the speed but he said that the vehicle appeared to be going “a bit too fast for what the road was”. He was sufficiently struck by what he saw to call out to the others. That was before Mr Smit fell off the utility. It was the driving which attracted his attention, not the ejection of the passenger. I think the spontaneous call by Mr Taylor-Harris to the others is indicative of something unusual about the accused’s driving. The accused did not take that corner in the unexceptional way that his passengers described. The camping group was standing a little further west than Mr Colgan. I consider they would have had as good a view of the utility and the corner as Mr Colgan had. Mr Taylor-Harris described the utility as swinging out to the right, overcorrecting to the left of centre then back to the right. The utility then stopped. The overcorrection to the left was shallower than the original swing to the right. So was the second swing to the right shallower than the first. The impression I got from this evidence was that, while the accused was going too fast for the corner, the movements after the first swing to the right were milder. That might suggest that, rather than trying to repeat the first manoeuvre, the accused was trying to control the vehicle. I should say that Mr Taylor-Harris did not notice Mr Smit fall off the utility. I do not conclude from that that he was unobservant about the driving. In fact his attention might have been more focussed on the driving than on the passengers. His not noticing the passenger fall off also suggests that he has not simply agreed with the others who did see the passenger fall off.
Mr Sullivan was standing on a trailer. His attention was drawn to the utility by Mr Taylor-Harris calling out. He said the speed of the vehicle before the corner made it look as if they were going “to lose a bit of control”. He saw the rear end slide out to the right. The utility corrected and slid a little to the left of centre. At some stage he saw Mr Smit hanging on to the vehicle.
The final witness from among the campers was Mr Bowden. He recollected the vehicle moving only once to the right, then once to the left before straightening up.
In summary, the evidence of the three campers suggests that the later deviations of the utility from the centre were less pronounced that the first. They all speak of the utility going too fast for the corner. I accept their evidence in these respects.
Defence case
The defence case is to be gleaned from what the accused said to the police and what his passengers said in the witness box. As I have already said I do not accept the passengers’ account of a completely unremarkable progress through the corner. Even the accused acknowledges he was going too fast and that the back of the utility slid out. What the accused denies is deliberately speeding or fish-tailing. He effectively says he misjudged the safe speed for the corner and when the back slid out he did his best to straighten up. While he does not himself say clearly to the police that his passengers were sitting on an inflated mattress in the back, he says that there was a mattress there. His sister says that all the passengers were sitting on it.
As I have observed, if that is so, then it was necessary for him to use all the more care when going around the corner because his passengers had little protection from falling off.
Discussion
I find that the most reliable accounts of the incident come from the three campers in the caravan park. While they do not give precisely the same account of the course of the utility around the corner, there is some persuasive commonality between them. Before discussing where that commonality leads me I discuss Mr Colgan’s evidence. The prosecution really relies on his evidence to support the proposition that the accused was driving at a markedly excessive speed on the corner and that he was deliberately swerving.
I deal first with Mr Colgan’s evidence of speed. He says the utility was going at about 60 to 70 kilometres per hour, possibly more, around the corner. I find that estimate unlikely. I would think that there was only about 40 to 50 metres of corrugated road between the right hand turn from the caravan park to the corner. Mr Colgan does not suggest that the utility took the right hand turn at any excessive speed. On his account the utility reached its high (for the circumstances) speed as it drove towards the sea. The utility was not a powerful vehicle. It was a 4 cylinder Toyota utility. It had 5 people on board. I do not think it could have reached 60 kilometres per hour by the time it reached the corner. Further I think that if it had been going between 60 and 70 kilometres an hour the loss of control would have been much greater. While I find that the speed was excessive for the circumstances, I reject Mr Colgan’s estimate of speed. I also reject his account of seeing the accused turn around and smile at his back passengers. I do not think he would have been able to see the driver in the utility. He was too far away. There was mesh behind the back window. Dust had been raised by the utility going round the corner. There were 3 passengers in the back. Of course, the accused’s driving would not have to be deliberately defective. If the accused was in fact consciously driving the utility and his driving was at a speed or in a manner that was dangerous to the public, then his lack of deliberateness would not be a defence. However, I think Mr Colgan is mistaken when he says he saw the accused smiling at his passengers after the first fish-tail motion.
I also reject the suggestion that the second fish-tail motion, if there was one, was as sharp as or sharper than, the first. Despite their differences, all three of the campers said subsequent motions were less pronounced than the first. I think their evidence is inconsistent with the accused trying to repeat the first motion. It is consistent with his trying to do the opposite, ie to control the vehicle and get it on a straight line.
On the other hand, their evidence suggests that the accused’s speed before the corner was so noticeably excessive as to cause Mr Taylor-Harris to call out to his companions to watch, which each of them did. Mr Colgan’s attention was also drawn to the utility before the corner.
While not accepting Mr Colgan’s estimate of speed, I cannot make a finding about the utility’s speed around the corner beyond it being excessive in the circumstances. I am not convinced the accused was deliberately trying to dislodge or disconcert his passengers. He may have been doing that but I am not satisfied beyond reasonable doubt that he was. I think it is a reasonable possibility that he was trying to straighten up the utility’s path when it slid out to the right because of the excessive speed. The speed might not have been excessive on a sealed road but it was excessive on the unsealed road.
I know nothing of the accused’s experience in driving apart from the fact that he was on a learner’s permit. I know nothing of his experience in driving on unsealed roads. I know nothing of his knowledge of that particular road. The answers to these questions might cast some light on the accused’s culpability. However the driving has to be judged in an objective manner. Would someone in the accused’s position have appreciated the risk to which his driving exposed other road users, including his passengers? Should he have appreciated the danger?
In R v Kroon (1990) 55 SASR 476 King CJ expressed the objective test thus:
It is well established that the question whether a vehicle is driven in a manner dangerous to the public for the purpose of the offences created by s 19a of the Criminal Law Consolidation Act 1935 must be answered by reference to an objective standard and irrespective of whether the accused intended to drive dangerously or appreciated that he was doing so: see R v Coventry (1938) 59 CLR 633 at 637-638, 639; McBride v The Queen (1966) 115 CLR 44 at 49-50, 55; Giorgianni v The Queen (1985) 156 CLR 473 at 479, 490, 499; Cornish v The Queen (1988) 48 SASR 520. The character of the driving is tested not by reference to whether the danger to the public involved in the driving was appreciated by the accused but to whether he ought to have appreciated the danger; or, to put it another way, whether a reasonable person in the situation of the accused would have appreciated the danger: see R v Mayne (1975) 11 SASR 583, per Bray CJ at 585; R v Duncan(1953) 11 SASR 592 at 594.[1]
[1] at 477-8
In R v Kamleh (1990-1991) 159 LSJS 268 King CJ described the test for “dangerous driving” in these terms:
[dangerous driving] involves a risk of injury to other which exceeds the ordinary risks of the road and amounts to a real danger to the public. Ordinary risk of the road include those arising from the sort of faulty driving and lack of care which must be expected, due to human frailty, from time to time from the ordinary driver[2].
[2] at p 269.
His Honour described the difference between driving in a manner dangerous to the public and driving without due care in these terms:
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 contrary to s 45 of the Road Traffic Act[3].
[3] at p 270.
In the same case White J also described the difference between the two offences:
The answer lies in the jury’s judgment of the gravity of the departure from acceptable standards of driving. There are some forms of driving which are so inherently dangerous in themselves that the very undertaking of them is the most cogent proof that any reasonable person in the situation of the driver ought to have realised the danger[4].
[4] at p 278.
In this case it is not easy to clearly mark the line between driving without due care and driving in a manner dangerous to the public. The accused’s speed as he approached the corner was sufficiently excessive to be remarked on by Mr Taylor-Harris. It was not simply a case of Mr Taylor-Harris noticing the speed. He called his companions’ attention to it. On the other hand the speed around the corner was not such as to dislodge all of the passengers on the tray. Only one of them fell off. I must warn myself against concluding from the nature of Mr Smit’s injuries that the driving must have been dangerous. Sometimes quite severe injuries can be caused by driving which breaches only the duty to drive with due care and attention.
I find that while the speed was excessive in the circumstances it was not so excessive that the accused ought to have realised the danger his speed posed for other road users, including his passengers.
In all the circumstances I am not satisfied that the accused’s driving can be categorised as dangerous driving within the meaning of s 19A(3) of the Criminal Law Consolidation Act.
I refer to a matter that was raised by the prosecution after I had first reserved judgment. Very properly Mr Trevorrow drew my attention to the case of R v S (1991) 22 NSWLR 548. On one view of it the case favoured the defence. In that case the court observed that members of the public for the purposes of a comparable offence in New South Wales would not necessarily include a victim who was part of a “joint escapade” with the accused. In that case injury had been suffered by a man who had engaged with the accused in skylarking in a car in a paddock where no other members of the public were endangered. However I accept the submission of Mr Trevorrow for the prosecution that Mr Smit could not be so regarded in this case. There was no suggestion that he and the other passengers in the tray of the utility were doing other than accepting a lift from the caravan park to the jetty. There is no suggestion of the passengers anticipating that there would be any fast or irresponsible driving on the way. In any event the road followed by the accused was a public road. People not associated with the group were exposed to any bad driving by the accused. It is fortunate that there was not another car travelling in the opposite direction to the accused around that corner. I therefore find that R v S is distinguishable from the present case. It was proper for Mr Trevorrow to draw the case to my attention.
Findings
I am not satisfied beyond reasonable doubt that the accused drove in a manner or at a speed which was dangerous to the public. I therefore find him not guilty of the charge of causing serious harm by dangerous driving.
I do find the accused guilty of aggravated driving without due care and attention, contrary to s 45 of the Road Traffic Act. The accused has already pleaded guilty to that charge. The aggravating factor of which I am satisfied beyond reasonable doubt is that as a result of the accused’s driving Mr Smit fell off the utility and suffered serious harm. His injuries were life threatening. The driving which constitutes the offence is negotiating the corner at a speed which was excessive in the circumstances. I do not find that the accused deliberately drove so as to dislodge or disconcert his passengers.
I find that after the back of the utility first swung out to the right, the accused was trying to straighten it up. Despite the accused’s attempts to straighten up the utility the consequences of the first swing to the right were such that Mr Smit fell off the tray and suffered serious harm.