R v Shah - [2020] SADC 144

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SHAH
Criminal Trial by Judge Alone
[2020] SADC 144
Reasons for the Verdicts of His Honour Judge Stretton
15 October 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - ACTS ENDANGERING LIFE OR PERSON
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - DANGER TO PUBLIC OR PERSON
As a result of a violent head-on collision between a BMW SUV driven by the accused, and a police Commodore sedan driven by two police officers, the accused was charged with Aggravated Creating the Likelihood of Serious Harm in relation to each of the two police officers occupying the two front seats of the Commodore (Counts 1 and 3). The accused immediately left the scene of the accident, and was accordingly also charged with Leaving the Scene of an Accident After Causing Harm By Careless Driving (Count 5). He pled not guilty. Each charge has been proven beyond reasonable doubt.
Held:
Count 1 – Guilty
Count 3 – Guilty
Count 5 – Guilty
Criminal Law Consolidation Act 1935 (SA) ss 19A(3), 19AB(2), 21, 29(2); Road Traffic Act 1961 (SA) s 43, referred to.
BCM v R [2013] HCA 48; Douglass v R [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; Aiken v R [2014] NSWCCA 213; Markou v R [2012] NSWCCA 64; R v R, R & R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR 382; R v S, GJ [2012] SADC 150, applied.
Ducaj v The Queen [2019] SASCFC 152, discussed.

R v SHAH
[2020] SADC 144

On 19 June 2012 police were searching for a green BMW X5 SUV suspected of having been involved in a serious offence. The vehicle was registered in the name of the accused’s father.
At about 10.40am that day, two officers located the BMW unattended in a street near the accused’s address in Salisbury Park. They parked their unmarked police Commodore sedan about 100 metres down the street, facing the BMW, and waited. The accused emerged on foot from an alley adjacent the BMW, alighted and then drove it along the street towards the police, ultimately colliding nearly head on with the police vehicle. The impact was violent. The police vehicle was spun around approximately 180 degrees and the BMW ran off the road into a tree. The airbags in each vehicle were deployed. The front of each vehicle was seriously damaged, with each vehicle plainly undriveable.
The accused alighted the BMW and ran off. One officer gave chase on foot but was unable to catch the accused.
The accused was eventually arrested and charged with several offences arising out of the incident. He has pled not guilty and has elected to be tried by judge alone.
The charged offences
The accused is charged with two counts of Aggravated Creating Likelihood of Serious Harm. In the alternative, he is charged with Aggravated Causing Harm by Dangerous Driving. He is also charged with Leaving the Scene of an Accident After Causing Harm by Careless Driving. The charged offences, as particularised in the trial Information dated 15 September 2020, are set out as follows:
First Count
Statement of Offence
Aggravated Creating Likelihood of Serious Harm. (Section 29(2) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Christopher Darren Shah on the 19^th day of July 2012 at Salisbury Park, without lawful excuse, drove a motor vehicle towards a police vehicle, knowing that the act was likely to cause serious harm to Richard James Miller, and intending to cause such harm or being recklessly indifferent as to whether such harm was caused.
It is further alleged that Christopher Darren Shah committed the offence against a police officer, knowing that the police officer was acting in the course of his official duty.
Second Count
Statement of Offence
Aggravated Causing Harm by Dangerous Driving (Section 19A(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Christopher Darren Shah on the 19^th day of July 2012 at Salisbury Park, drove a motor vehicle in a culpably negligent manner, recklessly or at a speed or in a manner which was dangerous to the public and thereby caused harm to Richard James Miller.
It is further alleged that Christopher Darren Shah was, at the time of the offence, driving a vehicle knowing that he was disqualified from holding or obtaining a driver’s licence.
Third Count
Statement of Offence
Aggravated Creating Likelihood of Serious Harm. (Section 29(2) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Christopher Darren Shah on the 19^th day of July 2012 at Salisbury Park, without lawful excuse, drove a motor vehicle towards a police vehicle, knowing that the act was likely to cause serious harm to Thomas Conner, and intending to cause such harm or being recklessly indifferent as to whether such harm was caused.
Fourth Count
Statement of Offence
Aggravated Causing Harm by Dangerous Driving (Section 19A(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Christopher Darren Shah on the 19^th day of July 2012 at Salisbury Park, drove a motor vehicle in a culpably negligent manner, recklessly or at a speed or in a manner which was dangerous to the public and thereby caused harm to Thomas Conner.
It is further alleged that Christopher Darren Shah was, at the time of the offence, driving a vehicle knowing that he was disqualified from holding or obtaining a driver’s licence.
Fifth Count
Statement of Offence
Leaving Accident Scene After Causing Harm by Careless Driving (Section 19AB(2) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Christopher Darren Shah on the 19^th day of July 2012 at Salisbury Park, drove a motor vehicle without due care or attention, thereby causing physical harm to Thomas Conner, and failed to satisfy the statutory obligations of a driver of a vehicle in relation to that incident.
Elements of the offence of Aggravated Creating Likelihood of Serious Harm per Section 29(2) of the Criminal Law Consolidation Act, 1935
The prosecution bears the onus of proving each of the following elements of the offence beyond reasonable doubt:
·That the (deliberate) conduct of the accused is likely to cause serious harm to another. Serious harm means harm that endangers a person’s life, or that consists of or results in serious and protracted impairment of a physical or mental function, or that consists of or results in serious disfigurement;[1]
·That there is no lawful excuse for engaging in the conduct. A lawful excuse is one which, by operation of a legislative provision or common law rule, exonerates or justifies conduct which would otherwise be an offence;
·That the accused knows that his or her conduct was likely to cause serious harm to another;
·That the accused either intends to cause serious harm or is recklessly indifferent as to whether the serious harm will be caused;[2]
·It is an aggravated offence if the accused committed the offence against a police officer, knowing that the police officer was acting in the course of his official duty.
[1] Section 21 of the Criminal Law Consolidation Act, 1935 (SA).
[2] Ducaj v The Queen [2019] SASCFC 152 per Kourakis CJ at paras 6-10.
In the recent case of Ducaj v The Queen,[3] the Supreme Court opined on the meaning of ‘likely’ and ‘recklessly indifferent’ in the context of the elements of offences pursuant to s 29 of the Act.
[3] [2019] SASCFC 152.
In Ducaj, the Chief Justice said that the term ‘likely’ in the context of ‘cause serious harm’ should not be interpreted by reference to synonyms or antonyms, and that it required more than the traditional definition of ‘likely’ in the context of criminal offences meaning ‘creating a substantial risk of’. He said that by virtue of its s 29 context it required more than ‘creating a substantial risk’. The Chief Justice went on to say that:
In directions on the first and third elements trial judges should not put a judicial gloss on the word ‘likely’. The direction should explain that the word ‘likely’ is not limited to describing a consequence which is more probable than not. The term may also be contrasted with a mere possibility, but synonyms for the word ‘likely’ should not be suggested. Juries should be told that the word carries its ordinary meaning, that no further elaboration is necessary and that it is for the jury to decide whether, on all of the evidence, the harm was a likely consequence of the conduct and whether the accused knew that it was likely
The Chief Justice said that ‘reckless indifference’ in the context of s 29(2) of the Act did not bear the meaning of the term as generally defined in s 21 of the Act, but rather had a special meaning coloured by s 29 itself: [4]
The direction on the element of being recklessly indifferent should neither repeat nor modify the directions as to knowledge of likelihood given on the third element. The jury should be directed that if they are satisfied beyond reasonable doubt of the third element, it is still necessary to consider whether the accused intended to cause harm or was recklessly indifferent to it. On the latter alternative fault element, the jury should be directed that the prosecution must show that there was no good reason or adequate justification for the conduct. Examples such as those which I have given in these reasons may assist the jury depending on the circumstances of the particular case.
[4] Ducaj v The Queen [2019] SASCFC 152 at para 50, Kelly, Peek and Nicholson JJ concurring, Stanley J dissenting.
Assistance in understanding what the Chief Justice meant by this may be sought by reference to earlier paragraphs of the judgment where he said: [5]
…It is necessary therefore to consider more closely what the fault element of recklessness adds to the ‘knowledge of the likelihood’ element in subparagraph (a) of each subsection.
A person may engage in dangerous conduct on the road, at work or in extreme sports, knowing that harm is likely but not intending, indeed desperately hoping not, to cause harm. Despite the semantic incongruity in describing a person who hopes to avoid a consequence as being indifferent to it, a person so acting may nonetheless be recklessly indifferent if there is no good reason or adequate justification for engaging in conduct which is likely to cause (serious) harm or endanger life. If a person produces a dangerous situation without any good reason for doing so, for example just for the thrill of it, or to advance his or her own selfish interest, he or she may be found to be recklessly indifferent for the purposes of the s 29 offences even if he or she hoped that no‑one would be harmed. Only when a person has a good reason, or adequate justification, to use the expression found in the definition of ‘recklessly’ in s 21 of the CLCA, for acting in a way which is likely to cause (serious) harm or endanger life, is that person not recklessly indifferent to its causation. An obvious example is a person who acts in an emergency when presented, through no fault of his or her own, with two very dangerous alternatives.
[5] Ducaj v The Queen [2019] SASCFC 152 at paras 22-23, Kelly, Peek and Nicholson JJ concurring, Stanley J dissenting.
Whilst this, on first blush, might seem to approach the issue of intent by conflating knowledge with objective justification or consequences, earlier in the judgment the Chief Justice does say that: [6]
Recklessness, as a fault element, generally requires some, not necessarily much, foresight of the possibility or probability of the proscribed consequence. However, for the purposes of s 29 offences, mere advertence to a possibility of the consequence is not sufficient, because, as we have seen, subparagraph (a) of each of the subsections requires knowledge of the likelihood of the consequence. (references omitted)
[6] Ducaj v The Queen [2019] SASCFC 152 at para 14, Kelly, Peek and Nicholson JJ concurring, Stanley J dissenting.
So, drawing together the effect of the Chief Justice’s judgment in Ducaj, to be guilty of an offence against s 29(2), an accused’s deliberate conduct must be objectively likely to cause serious harm to another which in the context of s 29 means more than ‘creating a substantial risk of serious harm’ but does not necessarily mean ‘more probable than not’, the accused must know that his conduct is likely (in that same sense) to cause serious harm to another, and the accused either intends to cause serious harm or is recklessly indifferent to it occurring. Reckless indifference requires the accused adverting to the likelihood (in that same sense) of serious harm rather than adverting to either the mere possibility of serious harm or a substantial risk of serious harm being caused, and proceeding nonetheless. The offence is aggravated if the accused committed the offence against a police officer, knowing that the police officer was acting in the course of his official duty.
Elements of the alternate offence of Aggravated Causing Harm by Dangerous Driving per Section 19A(3) of the Criminal Law Consolidation Act, 1935
The prosecution bears the onus of proving each of the following elements of the offence beyond reasonable doubt:
·The accused drove in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to the public;
·The negligent, reckless or dangerous driving caused harm to the complainants;
·It is an aggravated offence if the accused knew that he was disqualified from driving.
‘Harm’ means physical or mental harm whether temporary or permanent, and ‘physical harm’ includes unconsciousness, pain, disfigurement or infection with a disease.[7]
Elements of the offence of Leaving the Scene of an Accident after Causing Harm by Careless Driving per Section 19AB(2) of the Criminal Law Consolidation Act, 1935
[7] Section 21 of the Criminal Law Consolidation Act, 1935 (SA).
The prosecution bears the onus of proving each of the following elements of the offence beyond reasonable doubt:
·The accused drove a motor vehicle without due care or attention.
·The act of driving caused physical harm to the victim.
·The accused failed to satisfy the statutory obligations of a driver in relation to an incident. A person fails to satisfy the statutory obligations of a driver in relation to an incident if they commit an offence against s 43 of the Road Traffic Act 1961 by having been involved in an accident in which a person is killed or injured and failing to immediately stop their vehicle and give all possible assistance, and/or not more than 90 minutes after the accident presenting themselves to a police officer at the scene of the accident or at a police station for the purpose of providing particulars of the accident and submitting to any requirement to undergo a test relating to the presence of alcohol or a drug in the drivers blood or oral fluid.
It is a defence to a charge if:
·The accused proves on the balance of probabilities that they were unaware that an accident had occurred, and their lack of awareness was reasonable in the circumstances, or
·The accused proves that their failure to stop and give all possible assistance was due to their genuine belief on reasonable grounds that the conduct would endanger their physical safety or the safety of another person and at the earliest opportunity notified police or other emergency services of the accident, or
·The accused proves that their failure to report the accident not more than 90 minutes later was due to a reasonable excuse and they presented themselves to a police officer as soon as possible after the accident.
The cases at trial[8]
[8] In this part of the judgement, and variously throughout the judgment, reference is made to, and there is discussion of the defence case. No such reference or discussion should be taken to infer or connote that the defence has any obligation or onus whatsoever. The onus always remains with the prosecution to prove beyond reasonable doubt every element of each offence.
The prosecution case is that the accused deliberately drove the BMW at speed into what was, at the point of impact, a stationary police Commodore to ram it out of the way or disable it to avoid being apprehended by police, then indeed ran away avoiding apprehension. The prosecution case is that such an action created an obvious likelihood of serious harm to the officers in question and that in all the circumstances it can be inferred beyond reasonable doubt that the accused either intended that harm, or was at least recklessly indifferent as to whether his driving was likely to cause serious harm to both the officers. In relation to count 5, the prosecution alleges that the accused unlawfully left the scene of the accident without rendering the required assistance or reporting the matter as required by law.[9]
[9] Prosecution opening, T5.
The defence case, as outlined by defence counsel at the outset of the trial and in opening the defence case, was that whilst there was some dispute over what precisely the accused did, the issue would be the accused’s state of mind; firstly, whether he knew the likely consequences of his actions and whether they would cause serious harm, and secondly whether he knew the occupants of the vehicle were police officers acting in the course of their official duty. A further issue would be whether, and if so when, the police vehicle’s emergency lights were activated.[10]
[10] Defence outline of issues given at the outset of the trial, T10. Opening the defence case, T188.
When the accused gave evidence, he said that he had not in fact caused the collision at all, but that the police vehicle had deliberately accelerated into his vehicle in an ultimately successful attempt to deliberately ram him off the road.[11]
[11] XN at T194-195, XXN at T196.
In relation to count 5, the accused gave evidence that while he was aware of the collision having just occurred, and that he saw a flashing light which meant it could have been the police, ‘the fact that they ran me off the road like that, it just made me think that they were after me in some way and I just thought to run’. He said it didn’t cross his mind whether the occupants of the other car had been injured.[12]
[12] T195-197.
The course of trial
The prosecution called the two police officers who were occupants of the police Commodore during the events in question. Evidence was also called from a SAPOL senior crash investigator whose detailed statement and report as to the matter was also tendered. The report included data recovered from both the BMW and the police Commodore. Several photos, plans and diagrams relating to the scene of the collision were also tendered, together with several statements given by non-contentious police and lay witnesses. There were also agreed facts.
The accused gave evidence on oath in his own defence.
Legal principles
As this is a trial by judge alone, the court must deliver considered and fully articulated reasons for its decision. Whilst sufficient reasons must of course be given to properly explain the verdict,[13] a trial judge, sitting alone, is not obliged to express all the matters ‘which necessarily have to be stated to a jury, unfamiliar with … the basic principles of law’.[14]
[13] BCM v R [2013] HCA 48; Douglass v R [2012] HCA 34 at [14]; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; and Aiken v R [2014] NSWCCA 213.
[14] Markou v R [2012] NSWCCA 64 at [19]; R v R, R & R, LJ [2008] SASC 35 and R v T, WA (2014) 118 SASR 382. The Court applies the principles helpfully set out by Lovell J at paras 6-25 of R v S, GJ [2012] SADC 150.

To be clear however, the court has applied all the principles applicable to a criminal trial of charges of this nature that would be set out by way of all the standard directions to a jury. It serves no purpose to set out pages of standard form directions, however they have all been applied.
It is fundamental however, that the accused has, and always retains, the presumption of innocence. The prosecution bears the onus of proof and must prove each element of a charged offence beyond reasonable doubt before an accused may be convicted of that offence, and must do so based only on the evidence relevant to that offence. The court must and will consider each alleged offence separately, having regard only to the relevant and admissible evidence concerning that charge.
The accused in this case gave evidence on oath. He was not obliged to give evidence. He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy the court of all the ingredients of the charge. The accused is entitled to credit for adopting a course that he was not obliged to adopt. In assessing his evidence and the weight to be given to it, the court approaches the task in the same way as with any other witness, always bearing in mind however that the accused bears no onus to prove anything and that it always remains for the prosecution to prove each and every element of an offence before an accused may be convicted of that offence. Further, even if an accused gave evidence and was entirely disbelieved, that does not prove anything against the accused, it would remain, and always remains, for the prosecution to prove each element of any given charge beyond reasonable doubt based on the evidence it calls at trial.[15]
[15] Douglass v R [2012] HCA 34 at [13]-[14].
The evidence
Former Brevet Sergeant Miller[16] and Detective Brevet Sergeant Conner were the occupants of the police Commodore. While it was not apparent from the cross examination of these witnesses that there would be any substantial dispute as to their evidence, when the accused gave evidence it transpired that there was a significant dispute. Accordingly, it is necessary to set the evidence out in a little more detail than would otherwise have been necessary. In some attempt at conciseness it will not all be set out, but the court has carefully considered it all, re-read it all, and given particular attention to matters highlighted by counsel both in cross examination and their respective final addresses.
[16] No longer a police officer at the time of trial.
The first prosecution eyewitness to the events in question was former Brevet Sergeant Miller. Former Brevet Sergeant Miller gave evidence that on Thursday 19 July 2012 he was in company with Detective Brevet Sergeant Conner, driving an unmarked maroon coloured Holden Commodore police vehicle. He was the driver. Both officers were in plain clothes.
On that day, they were trying to locate a dark green BMW X5 SUV, registered in the accused’s father’s name, which was suspected to have been involved in a serious offence. They attended several addresses, and in the course of the morning they visited the accused’s address at Terrigal Drive in Salisbury Park. They did not locate the BMW at that address, but they drove around the surrounding streets and after a few minutes located it parked on an adjacent parallel street, Inglebrae Crescent. It was parked on the northern side of the road, facing east, adjacent 24 Inglebrae Crescent, near an alleyway that ran between Terrigal Drive and Inglebrae Crescent.
Brevet Sergeant Miller gave evidence that the officers took up a stationary position about 120 metres east of the BMW, facing west on the southern side of the road, adjacent 29 Inglebrae Crescent. No other vehicles were parked on the road near either vehicle, or between them. The weather and visibility were good. The rationale was to give the police enough distance to conduct an ‘overt’ traffic stop[17] of the BMW if it moved, and also be far enough away so that they weren’t necessarily going to be seen by anybody who might approach the vehicle.[18]
[17] The transcript at p 53 incorrectly reads ‘over’ traffic stop. It should read ‘overt’, as it correctly appears on p 58, line 30.
[18] T53.
Shortly before 11.00am Brevet Sergeant Miller saw the accused approach the rear of the BMW, then move towards the driver’s side of the vehicle. At that point, the accused looked up in the direction of the police vehicle, hesitated and momentarily turned back in the direction he had come from, but then turned back towards the driver’s door of the BMW, opened it and got in the driver’s seat.[19] A possible inference suggested by the prosecution is that the accused saw the unmarked Commodore with two occupants and either thought or suspected it was police, and as a consequence momentarily hesitated as to what he would do.
[19] T55.
Brevet Sergeant Miller gave evidence that as the accused pulled the BMW away from the northern kerb and started travelling towards them, Brevet Sergeant Miller simultaneously pulled the police Commodore towards the centre alignment of the roadway and Detective Brevet Sergeant Conner activated their vehicle’s front and rear red and blue flashing police emergency lights.[20] The aim was to conduct the ‘overt’ traffic stop, in other words to make it obvious to the driver of the BMW that they were the Police and that they wanted him to stop his vehicle.[21]
[20] T57.
[21] T58.
Brevet Sergeant Miller said the movement of the police vehicle was ‘a deliberate move … but not like a race car take-off or anything’. He said that as he was moving the police vehicle into the middle of the road he could see that the accused was accelerating fast. Although there was room for it to pass on either side of the police vehicle, including on its own correct northern side of the road, Brevet Sergeant Miller said that the BMW moved to the centre of the road and proceeded in the direction of what was potentially going to be a head-on collision with the police Commodore.[22] He moved the police vehicle slightly to the left to allow the BMW more room to pass on its correct side of the road and braked to a stop. Rather than pass the police vehicle on the BMW’s correct side of the road, the BMW appeared to move further over, and away from its correct side of the road, such that it resumed an aligned collision course with the police vehicle. Then came impact, with the officer’s dominant recollection being of the BMW’s engine revving and at the point of impact a sound akin to a hammer hitting a nail. The airbags then went off with consequent dust and debris from that appearing inside the cabin, and as the airbags deflated Brevet Sergeant Miller saw debris from both vehicles ‘raining down around the cars’.
[22] T60-61.
Brevet Sergeant Miller said that he saw a movement to his left, pushed open his driver’s side door, and on getting out of the vehicle saw the accused running away across the front yard of the property at number 29. The accused appeared to be holding his hands down at the front of his body at belt level as he ran, sometimes with both hands, or changing between hands as he ran.[23] Brevet Sergeant Miller gave chase for some distance, but eventually the accused eluded him. The accused’s hands continued to be variously pressed against the front of his body at belt level throughout the chase.[24] A possible inference suggested by the prosecution is that the accused was carrying an item that he did not wish to be seen, or caught with, as he fled.
[23] T66-67.
[24] T68.
Brevet Sergeant Miller gave evidence that as a result of the impact he sustained bruising across his lower abdomen and chest, bruising and abrasions to his left-hand side and minor lacerations to his nose. He did not seek treatment.[25]
[25] T69.
In cross-examination Brevet Sergeant Miller was taken through the events again. He repeated that Detective Brevet Sergeant Conner had activated the warning lights as the police vehicle commenced to move. He said that this was the standard procedure, usual in such a situation, and that he also gave a direction to activate the lights. He said that he moved about 10 metres to a point where he was in the centre of the road, and at that point he saw the accused was about 50 metres away and accelerating hard, so that was when he moved the Commodore slightly to the left and then a bit further left. He agreed with the suggestion by defence counsel that the police vehicle might have momentarily reached around 30km/h. He repeated that the accused then responded to his moves, in that what he observed was the accused moving down the centre of the road towards the police vehicle when the police vehicle was in the centre of the road, and correspondingly moving further over as the police vehicle was moved to the left by Brevet Sergeant Miller. When then happened, Brevet Sergeant Miller described his thought processes as: ‘… what do I do, where do I go? The only thing I can do, and eventually (did), (was) bring the car to a complete stop and ride it out’.[26]
[26] T74.
Brevet Sergeant Miller agreed with a suggestion by defence counsel that the whole series of events happened very quickly and that the accused’s corresponding moves came very quickly after his moves. He said that at no time during these events did the police vehicle block the eastbound lane, and in fact the accused could have passed the police vehicle on either side.[27] It was not suggested to Brevet Sergeant Miller that he was wrong or mistaken as to his evidence, nor that he was less than an honest witness, although he was asked whether it was possible that when he first moved the police vehicle away from the kerb to the ‘overt stop’ position in the middle of the road he could have been further to the right than he now remembers. He disagreed with the suggestion.[28]
[27] T73-75.
[28] T76.
The other occupant of the police vehicle was Detective Brevet Sergeant Conner. Detective Brevet Sergeant Conner also outlined the purpose of their tasking that day, and what they had done prior to locating the BMW in question adjacent the premises at 24 Inglebrae Crescent, Salisbury Park. He also gave evidence that the lighting was good, there were no other vehicles on the road and that there was nothing to obstruct their view of the BMW. In his recollection, they parked adjacent 27 Inglebrae Crescent and then took up observation of the BMW.
After about 5 minutes Detective Brevet Sergeant Conner saw a male person approach the rear of the BMW, then walk very close along the drivers’ side of the car ‘as if not to be seen’, then get into the driver’s seat.[29]
[29] T80.
Detective Brevet Sergeant Conner gave evidence that the BMW started driving, initially at ‘quite slow, just a normal pace’, down the street on its correct northern side of the road. At that point Brevet Sergeant Miller started to drive towards the BMW, moving it to the centre of the road and at the outset Detective Brevet Sergeant Conner activated the police car’s emergency lights.[30] When the police vehicle moved to the centre of the road the BMW then also moved to the centre of the road and started to accelerate rapidly. The BMW then continued to accelerate such that Detective Brevet Sergeant Conner said he expected to see smoke coming from its back wheels, anticipating that it was going to brake, but it soon became evident to him that it wasn’t going to brake so when it was about 10 metres away he closed his eyes and braced himself for a collision ‘…thinking I was about to die’. He said that at no time did he hear anything like the squealing of brakes.[31]
[30] T81.
[31] T83.
Detective Brevet Sergeant Conner said that his passenger side airbag went off, the car spun around and eventually came to rest after smashing through a kerb. He saw the BMW had come to rest against a tree, five or ten metres past the police vehicle. The police emergency lights were still operating. He saw the driver of the BMW alight, look at the police vehicle for a couple of seconds then turn and run away. He saw his partner alight the police vehicle and give chase. Detective Brevet Sergeant Conner saw smoke coming from the front of the police vehicle and became concerned it was going to ignite. He kicked open his passenger side door and retrieved a fire extinguisher from the boot and gave it to a member of the public to extinguish the suspected fire while he advised police communications what had happened.[32]
[32] T85.
Detective Brevet Sergeant Conner gave evidence that as a result of the collision the ligament of his right shoulder had been torn off, he had undergone two shoulder reconstructions which necessitated four screws being inserted, his bicep tendon had to be cut, shortened and reattached, and he had ultimately been left with a permanent disability.[33]
[33] T85-86.
In cross examination Detective Brevet Sergeant Conner was very briefly taken through one or two aspects of the events again. It was not suggested that he was less than an honest witness, or wrong or mistaken in any way, although he was asked whether he may have turned on the warning lights as the police vehicle arrived at the centre of the road. He repeated that he had turned the lights on as soon as the police vehicle had moved away from the kerb. There were no questions as to his injuries.[34]
[34] T86-87.
The next witness was Senior Sergeant Kuchenmeister, a major crash investigator. Senior Sergeant Kuchenmeister gave evidence that most of his last 20 years as a police officer had been with the Major Crash Investigation Unit. He set out his numerous qualifications, regular training and extensive experience obtained over that time. His expertise was formally conceded by the defence.[35] He is currently the senior technical examiner in the Reconstruction and Technical Examination Unit of the Major Crash Section of the South Australian Police. His 2012 statement and annexed full report was tendered by consent.[36] He explained that the 2012 report and statement was subject to some minor subsequent revisions because of some technological advances that had been made subsequent to 2012, and in light of associated discussions he had had with an expert retained by the defence.
[35] T92.
[36] Exhibit P9, T96.
Senior Sergeant Kuchenmeister gave evidence that he had reconstructed the collision that had occurred on 19 July 2012. That process included personally attending and inspecting the scene on the collision on that day, noting a series of gouge marks and tyre marks on the road, weather conditions, and inspecting the vehicles in question in situ. He also conducted a detailed inspection of the vehicles later at the police vehicle compound at Ottoway. He also considered a series of photographs, measurements and plans prepared by other officers. He was present when many of those measurements and photographs were taken. He also had access to a report of electronic data retrieved from each of the vehicles concerned, which notably included data as to the police vehicle’s speed in the two and a half seconds preceding impact, from the police Commodore’s airbag module. As a part of that reconstruction he had calculated the speed of each respective vehicle at the point of impact, which had included some consultation with a Mr England, an expert retained by the defence. As a result, the experts had agreed a conclusion as to the speeds of the vehicles at the point of impact. They had agreed that the police Commodore was stationary, and the BMW was travelling at between 66 and 72 km/h.[37]
[37] T93.
Senior Sergeant Kuchenmeister gave evidence that conditions on the day were good, and that the roadway was in good condition. There were no defects in the roadway that could have contributed to the collision.
Senior Sergeant Kuchenmeister gave evidence that there were two extended tyre marks on the road consistent with the BMW having been under heavy acceleration for some distance leading directly to the point of impact. That the BMW was under heavy acceleration at the point of impact is further corroborated by data recovered by BMW from the BMW indicating that at a point consistent with impact, its 4.8 litre V8 engine was operating with engine load of 99.74%, in other words it was being accelerated at maximum engine load capacity.[38]
[38] Exhibit P9 statement. p 25, discussed at T153-154.
Senior Sergeant Kuchenmeister gave evidence that the BMW’s extended tyre marks, marks consistent with heavy acceleration, started on the northern, correct side of the road for the BMW, then veer towards the centre of the road then over the centre of the road onto the wrong side of the road.
Senior Sergeant Kuchenmeister estimated that the police Commodore was effectively stationary at the time of impact, as also reflected in the data recovered from the police Commodore’s airbag unit which shows the vehicle braking from 38km/h to a halt in the two and a half seconds prior to the impact. There was no indication anywhere on the road of heavy acceleration by the police Commodore.
Senior Sergeant Kuchenmeister gave evidence as to his estimation of where the impact occurred, and this evidence is also reflected in his tendered report and diagrams, Exhibits P11, P12, P13 and P14. It was 103 metres from the BMW’s estimated starting position outside 22 Inglebrae Crescent. It was, as set out in the tendered diagrams, a slightly offset head-on collision between the accelerating BMW and the stationary police Commodore, slightly to the southern, correct side of the road for the police Commodore, which was the wrong side of the road for the BMW.
Senior Sergeant Kuchenmeister was cross examined in detail by defence counsel and taken over much of his evidence. He adhered to his evidence and opinions. The court has carefully reviewed and considered everything raised with the witness in cross examination. Some of the matters highlighted by defence counsel with Senior Sergeant Kuchenmeister were that at a steady 50km/h it would take around 7.2 seconds to travel 100 metres from the BMW’s starting point to the point of impact. He agreed that there will always be ‘perception response times’ in terms of driver behaviour, and there are many variables relevant to this. For example, the response time will be shorter if the driver is on alert or averting a risk.
The prosecution also tendered detailed crime scene investigation materials as to the scene of the accident and the vehicles involved, and two statements of agreed facts.
Statement of agreed facts, Exhibit P7, sets out agreed facts as to measurement, distances and aspects of the tyre marks. Of potential significance, it was agreed that the approximate point of impact was ‘point A’ on the diagrams, 3.5 metres north of the southern kerb. At that point, the road was 7.3 metres wide. Tyre mark T1, (one of the two tyre marks that Senior Sergeant Kuchenmeister gave evidence that was consistent with the BMW being under harsh acceleration), was 23.7 metres long and was agreed to be consistent with the right rear tyre of the BMW. Tyre mark T2 was consistent with the other rear tyre of the BMW and was 8.7 metres long.
Statement of agreed facts, Exhibit P17, includes agreement as to certain distances, in particular that it was 103 metres from outside 22 Inglebrae Crescent (where the BMW was initially stationary) to the point of impact, and that each of the vehicles was 1.8 metres wide. It was agreed that as at 19 July 2012, the BMW was registered to the accused’s father. It was agreed that the accused was disqualified from holding or obtaining a driver’s licence from 8 June 2012 to 7 December 2012.
The statement of Bruce Webb was tendered by consent. Mr Webb observed the BMW parked in front of 24 Inglebrae Crescent at about 8.30am on 19 July 2012 and made the same observation at about 9.30am. At about 10.50am he heard a very loud roar of a vehicle taking off in the street, then a loud bang at which time the roar stopped. He ran into the street and saw the BMW was no longer parked where it had been, and then saw the aftermath of the collision. He saw the BMW, and the police vehicle with it’s warning lights still flashing. He ran to the scene and spoke to a police officer who appeared to be in shock.[39]
[39] Exhibit P15.

The statement of another neighbour, Jennifer Gay, was tendered by consent. She was sitting in her lounge room at the time when she ‘noticed a green 4WD racing past the front of my house on Inglebrae Crescent towards the direction of Cooradilla Drive, … I immediately heard a loud bang that sound to me like a car crash’. She went outside and saw the aftermath of the collision.[40]
[40] Exhibit P16.
The investigating officer gave brief evidence that on 13 August 2012 the accused was located at an address in Para Hills. He was then arrested and charged with various offences.
The accused gave evidence on oath in his own defence. He said that at the time of these events he was 27 years of age and lived at an address in Salisbury Park. The accused gave evidence that he had owned the BMW in question but it was transferred and registered over to his father at around the time of the incident in question.[41] The accused said that after the transfer, he only drove the car on the occasion in question. He agreed that on the day in question it was parked outside 22 Inglebrae Crescent. The accused gave evidence that a friend of his had placed the vehicle there, he thought the day before. He knew it was there because he had been with his friend that night.
[41] T189.
The accused gave evidence that the following morning he left his house, walked through the alleyway from Terrigal Drive to Inglebrae Crescent, for the purpose of driving the vehicle back to his father’s house. His father’s house was located in a different suburb, on the other side of Main North Road. The accused said he had a bum bag around his waist containing his wallet, phone and keys.[42]
[42] T191.
The accused said that when he got to the BMW, he opened it with its central locking and looked up the street noticing another vehicle ‘up there’. He did not know what type of car it was. He said he was going to go around the other side of the car as he had some clothing there, to make sure that it was folded properly, then decided to do that once he was in the car instead of going around the other side of the car, so he opened the driver’s side door and got into the vehicle. He said he started the vehicle and put his seatbelt on, as ‘everything was tidy in the back already’, pulled away from the kerb and drove off at a gradual speed building up to the speed limit of 50 km/h. He said he would have reached the speed limit after quite some distance, and that he drove on his own correct side of the road. The accused’s evidence as to what happened next is as follows:[43]
[43] T192-194.
Q.Once you were driving did anything happen along the way.
A.As I've got towards near the end of the street the other vehicle has pulled out and across into my lane. Now it didn't indicate at that time so it's come across and at a, you know, a sort of a rapid acceleration so it came across reasonably fast. It was at that point that I decided - it was my decision to veer out as it's come across so far and take my foot off the accelerator and place it onto the brake.
Q.How far down the road were you when you saw the other car move to your side of the road.
A.I would have been around the No.23 on the opposite side of the road, just past the, I think it's the T1, no maybe the T2 position on the map.
Q.Looking at Exhibit P3, you can see that's the aerial photograph, by reference to that where would you say you were when the Commodore performed this manoeuvre.
A.I would have been coming up, towards - I would have been passing house No.23 going to the one next to it which is house 25.
Q.And on your side of the road which number were you near.
A.It would have been in between 30 and 32.
Q.You've described the Commodore coming to your side of the road.
A.Yes.
Q.You said you took your foot off the accelerator. Could you describe for his Honour what happened next.
A.I put my foot onto the brake. Now as I take my foot off the accelerator with that vehicle especially at a 50 kilometre speed it tends to show down very quick so you don't need to brake hard on it so it's got, like a transmission in it, it's like an aftermarket torque converter. I'm not sure if aftermarket but it was replaced which at a low speed is going to slow the vehicle down quite easily, so I've applied the brake, almost come to a complete stop. There's a bit of a roll if you put it in park you don't have your foot on the brake it would roll forward, so I've slowed right down and taken my foot off the brake a little bit, looked over to the left and for about a couple of seconds it would be just like a slow pace roll, not knowing where that vehicle was going, it had no lights or indicators on at that point. They've been positioned as if they were coming front on towards me but on my side of the road. That didn't leave me any space to go down or continue down my side of the road. The reason why I swerved instead of braking straight in the middle of the road is because they were coming front on towards my vehicle, it was a bit of, like a swerve to manoeuvre or to dodge them coming towards me and because they had no lights on at that stage I didn't know who they were so I've steered, applied the brake. When I've looked over I've almost come to a complete stop. Then no-one has got out of that vehicle, no doors have opened. It would have been maybe - a few seconds and I've noticed they've taken no action at all, so I thought I can accelerate around this vehicle. Then I've put my foot onto the accelerator, went to accelerate around their vehicle. As I've made my path to go around their vehicle there's been a few big trees on the right-hand side which I've noticed. I've tended to go around and to dodge the kerb. As I've got in the middle about to turn so I've turned right, I'm about to turn left to go around their vehicle like that (INDICATES) and then as I'm just about to make that turn their vehicle has accelerated rapidly into my path deliberately crashing into the front of my vehicle and as the impact is happening or just about to happen, as they've come, that's when the other officer in the vehicle switched on the lights.
The accused went on to say that he did not think he would injure anyone because had the vehicle not come across again into his path there would have been a clear path past with no danger. He denied intending to injure anyone or at any stage deliberately attempting to hit the other vehicle or knock it off the road.[44]
[44] T194.
The accused gave evidence that when his vehicle came to rest he opened the door and ran off because ‘the fact they ran me off the road like that, it just made me think they were after me in some way and I just thought to run, it was a reaction of mine’. He said it didn’t cross his mind whether anyone was injured. He said he didn’t take anything from the glove box, but he did hold on to his bum bag with one hand as he ran so he didn’t lose it.[45]
[45] T196.
The accused was cross examined about the events. He repeated that it was the police who in fact rammed him off the road. He said he wasn’t sure it was the police but that he did see a flash of blue lights at around the time of impact. The accused agreed that he knew that the law obliged him to stop and render assistance and attend at a police station not more than 90 minutes later. He added that he was in fear as he had just been ‘deliberately rammed off the road’. The accused said that he did not really accept, even now, that the police had been injured.[46]
[46] T197.
When the accused was asked whether he had any reasonable excuse in law for failing to report his involvement in the collision as required by law, he said he contacted a lawyer straight away but didn’t report it as it was the police who ‘deliberately rammed me off the road’.[47] The accused repeated that he didn’t believe the police were injured, because the police had lied about the whole thing,[48] indicating that indeed in his view that the police had in fact planned the whole process whereby they had deliberately rammed him off the road.[49]
[47] T198-199.
[48] T202.
[49] T205.
The accused said he would have been doing about 50 km/h when the police vehicle then accelerated rapidly, and deliberately crashed into the front of his vehicle. He said that while he did not know and could only guess, the police vehicle could quite easily have got up to 50 km/h as well, at the point it deliberately crashed into the front of his vehicle. The accused said the police vehicle had, from a stopped position, accelerated rapidly under full acceleration towards the front of his vehicle, but he couldn’t say whether they were over the 50 km/h speed limit.[50] He said that he did not perceive the police braking at all, rather they just drove straight into the front of his vehicle. He said that he didn’t brake as he ‘didn’t have a chance to’.[51] He denied the allegation that he had accelerated to between 66-72 km/h immediately prior to impact.[52]
[50] T206.
[51] T209.
[52] T213.
The accused was asked about who had driven the night before. He said he was with a friend the night before, and the friend had driven the BMW. The friend was called Adrian but he could not recall his last name. The accused could not recall where he had met Adrian, nor where they had used the car, or what for.[53]
[53] T214.
Addresses
The court has regard to the addresses of counsel and has carefully considered all of counsel’s submissions, however will not set them all out.
The broad thrust of the prosecution final address was that the police evidence was reliable and supported by both the collision reconstruction evidence and common sense, and that, by contrast the defence case was often unintelligible and in any event, bore little relationship to the defence case put to the prosecution witnesses at trial. It was submitted that the proposition that police would deliberately ram the accused’s vehicle was fanciful, and was, again, never suggested to the police officers concerned in cross-examination. It was submitted that the accused’s evidence that the police deliberately rammed his vehicle at speed was contradicted by the data recovered from both vehicles, and contrary to unchallenged agreed evidence of the reconstruction expert, in particular the figure agreed with a defence expert that the accused’s vehicle was travelling at between 66 and 72 km/h at the point of impact. The prosecution submitted that the technical and reconstruction evidence, supported by the police evidence prove that the accused accelerated forcefully at speed head on into the police vehicle and that in those circumstances the accused must have known that serious harm was likely to the occupants of that vehicle, and must have either intended that or been recklessly indifferent to it. The prosecution submitted that the overwhelming inference was that the accused intended to ram the police vehicle out of the way, and/or disable it, to avoid being detained, which, the prosecution submitted, was exactly what happened. The prosecution submitted that the fact the accused decamped after the collision is consistent with, and reflective of, an overall intention to escape being detained by police. The prosecution points to the open glove box and the fact the accused seemed to be holding his hands to the front of his body consistent with carrying something as he ran away, to suggest another possible motive for his actions, i.e. to prevent the police locating whatever he might have had with him in the BMW.
The broad thrust of the defence final address was to focus primarily on the element of whether the accused intended to cause serious harm or was reckless about whether it was caused, and to argue that, overall, the evidence was as consistent with the accused attempting to avoid a collision as cause one.[54] The defence submitted that the evidence was consistent with the accused driving down his correct side of the road, then when the police vehicle moved to the centre of the road, making a decision to accelerate and swerve past the police vehicle on the other side, without any intent or recklessness as to the causing of any harm. The defence argued that there would have been other easier ways to avoid the police, if that was his intention. The defence submitted that whatever the objective evidence may tend to show as to the speeds of the vehicles, the accused genuinely believed the police intended to run him off the road, and that at no time did the accused intend to hit the police vehicle or cause harm to anyone. It was argued that the events all occurred very quickly, such that it was unrealistic to try to deconstruct the course of events in the detail that the prosecution and the police reconstruction evidence had sought to do, and that while the police witnesses’ evidence as to the events was honest, it was mistaken.
[54] T272.
Consideration
The court has carefully considered and re-read all the evidence, and closely considered all counsel’s submissions.
The two police officers who had been in the police vehicle gave evidence well and in a straightforward way. There were some small inconsistencies in their evidence, understandable with the passage of time and consistent with either different degrees of recall or slightly divergent memories over that eight-year passage of time. It was plain from their evidence that they had not conferred or compared notes. Their demeanour and presentation was good, and no animus or malice towards the accused was apparent in the manner or content of their evidence. Their recollections of events immediately prior to the point of impact were broadly consistent, but also affected to some degree by trauma that a collision of the force in question plainly resulted in. The impact was plainly extremely violent, as is clear from the massive damage to the front of the police Commodore apparent from the photos. Their claimed actions, of activating their warning lights and moving to the centre of the road to conduct an ‘overt’ stop, then coming to a halt when the other vehicle accelerated rapidly at them, were logical and apparently rational, and are inherently more likely than those suggested by the defence, of, in accordance with a plan to do so, not activating their lights until a moment when they deliberately accelerated their police vehicle head on into a far larger car in an attempt to ram it off the road, thereby intentionally seriously damaging their own police car with obvious risks to their own life and limb. Overall the evidence of the police officers seemed credible, and reliable. It had the distinct ring of truth.
The accused’s evidence was that he at no time intended to strike the police vehicle or evade police, rather that he accelerated to go around a car which he did not know at the time was the police, on the wrong side of the road, as that car was inexplicably on its wrong side of the road, but that the vehicle accelerated into him at speed with no indication of any braking, as if to deliberately ram him off the road. There is a degree of irrationality in his own such behaviour if it was for the given reasons, and an inherent unlikelihood that police officers would intentionally wreck their own police car and endanger their own lives to pull over another vehicle. However, the accused consistently maintained throughout his evidence that that is exactly what happened.
It was not clear at all, on the accused’s version of events, why he would need to veer to the wrong side of the road as evidenced by the reconstruction evidence, nor accelerate violently as evidenced both by the BMW’s engine data and the rubber tyre marks left on the road by that acceleration. If the accused had been intending to cross to the wrong side of the road, merely to pass another car facing him on his own side of the road, who he neither knew was police nor was trying for any reason to evade, there was no need to accelerate at a maximum rate, nor exceed the speed limit on what was a short back street not far from an intersection ahead. Indeed, the overwhelmingly rational thing to do would have been to simply stop to see what this other vehicle was doing.
The expert evidence, and the data obtained from both vehicles plainly corroborates the police version of events and is starkly inconsistent with the accused’s evidence. That data, to which there has been no credible challenge, establishes that the police vehicle braked to a standstill at the point of impact, and that the BMW was exceeding the speed limit and under maximum acceleration at the point of impact. Independent witnesses variously heard the ‘roar’ of an engine and saw the BMW ‘race’ past, as it proceeded towards the police vehicle immediately prior to impact.
Factual conclusions
Having closely considered all the evidence and submissions, and importantly the defence case, the overwhelming inference is that the events occurred primarily as the police witnesses said it did, and as the reconstruction evidence and the vehicle data plainly indicate that it did.
The court finds proven beyond reasonable doubt that the events unfolded as set out by that evidence. The court finds proven beyond reasonable doubt that the accused approached the BMW on foot, looked up the street and saw the vehicle which was in fact the police Commodore and briefly hesitated before entering the BMW and initially driving away from the kerb in an ordinary way. At that, the police left the kerb immediately activating their warning lights and drove to the centre of the road so that it would be clear to the approaching vehicle that it was required to stop. At least at that point, the accused was aware that it was a police vehicle. As soon as the accused saw this occur and became accordingly aware it was a police vehicle, he decided to accelerate at maximum rate and move towards the centre of the road himself. As the police saw this occur, they moved slightly to their left, but the BMW continued past the centre line of the road, still under maximum acceleration. As soon as police realised the BMW had commenced accelerating rapidly in their direction they moved slightly to the left and stopped the vehicle. The accused continued to accelerate the BMW at its ‘maximum engine load’ to the point of impact with the now stationary police Commodore. At that time, the BMW was doing between 66 and 72 km/h and accelerating. The fact that the vehicle was under maximum acceleration at the point of impact,[55] together with all the surrounding circumstances, establishes that vehicle was being deliberately accelerated at maximum power at that time. It would have been obvious to a person in the BMW driver’s seat that impact was imminent, as that person would have an elevated and unobstructed view from what was an SUV’s driver’s seat. It struck the police vehicle nearly head-on. There had been room to pass safely on either side of the police Commodore. There was a violent impact, throwing the cars around, as set out in the tendered reconstruction diagrams. The court finds proven beyond reasonable doubt that the accused’s actions were likely to cause serious harm to both police officers in the front seats of the police Commodore. The accused then alighted and decamped as described by Brevet Sergeant Miller, escaping the officer despite a chase on foot.
[55] As indicated by the passage of the vehicle observed, and roaring engine noise variously and/or seen by both police officers and both tendered statements of witness, and the BMW engine data.
There is simply no rational reason consistent with innocence that the accused would, as the court finds established by the evidence that he did, deliberately drive his BMW under maximum acceleration into a near head on collision with a braking, then stationary, oncoming vehicle. The weather was good. Visibility was clear. There was no mechanical fault in either vehicle. There was room to pass on either side. The unavoidable inference is that his actions in doing so were deliberate.

It is not disputed that police were seeking the vehicle regarding a serious offence. It is not disputed that the accused was disqualified from driving. It is clear that the accused ran away, apparently holding something close to his front belt.
The court finds proven beyond reasonable doubt that, at least at the point the accused began to accelerate towards the police Commodore at what the court finds was maximum acceleration, he had realised that it was police who were attempting to stop him and his vehicle, and decided to attempt to evade them by driving directly at them to cause a severe impact which would either disable the police car and/or the police occupants of the vehicle themselves, such as to enable him to escape either in the BMW if it was still operational, or on foot if it wasn’t. It is obvious that the accused’s vehicle was larger, heavier and likely more powerful than the police vehicle and hence likely to fare far better in any impact, both as to the resulting condition of the vehicle, and certainly as to the likely resulting condition of the occupants of the smaller police vehicle and their ability to maintain any kind of pursuit. It is proven beyond reasonable doubt that the accused knew his actions were likely to cause serious harm to both police officers, but was at least recklessly indifferent as to whether that occurred.
The accused’s actions plainly, and the court finds proven beyond reasonable doubt, also amounted to driving without due care and attention, and the court also finds caused physical harm to Detective Brevet Sergeant Conner. After the impact, the accused, having caused that physical harm, was obliged under the traffic legislation to stop and render assistance, and to report to police as earlier set out. He plainly deliberately did neither. His reason was to avoid being apprehended by police.
In short, the court finds proven beyond reasonable doubt that the accused failed to satisfy the statutory obligations of a driver in relation to an incident as he committed an offence against s 43 of the Road Traffic Act 1961 by having been involved in an accident in which a person was injured and failed to immediately stop his vehicle and give all possible assistance, and not more than 90 minutes after the accident failed to present himself to a police officer at the scene of the accident or at a police station for the purpose of providing particulars of the accident and submitting to any requirement to undergo a test relating to the presence of alcohol or a drug in the drivers blood or oral fluid. The court finds proven beyond reasonable doubt that his reason for failing to do these things was to avoid apprehension by police.
In terms of possible defences, the accused has not proved on the balance of probabilities that he was unaware that an accident had occurred, and his lack of awareness was reasonable in the circumstances; he was aware of the accident. The accused has not proven that his failure to stop and give all possible assistance was due to any genuine belief on reasonable grounds that the conduct would endanger his physical safety or the safety of another person, nor did he at the earliest opportunity notify police or other emergency services of the accident, nor has the accused proved that his failure to report the accident not more than 90 minutes later was due to a reasonable excuse and that he presented himself to a police officer as soon as possible after the accident. Indeed, the contrary is established beyond reasonable doubt: that the accused did not comply with his legal obligations solely to avoid apprehension by police, and that there was nothing reasonable basing that purpose.
Conclusion
The evidence establishes beyond reasonable doubt that:
·That the accused deliberately accelerated and collided almost head on with what he knew was a police vehicle containing police officers, to avoid being stopped by those police. The accused’s (deliberate) conduct in driving what was a large, heavy V8 powered BMW SUV at between 66 and 72 km/h and still under maximum acceleration head-on into a collision with a braking then stationary police Commodore, a considerably smaller vehicle, was clearly likely to cause serious harm to those in the front seats of that vehicle. It plainly endangered their lives, or if they were not killed was likely to result in serious harm as earlier defined.[56]
·There was no lawful excuse for engaging in the conduct.
·The accused in driving what was a large, heavy, V8-powered BMW SUV at between 66 and 72 km/h and still under maximum acceleration into an almost head-on collision with a braking then stationary police Commodore must have known that his conduct was likely to cause serious harm to the police officers in the vehicle. Indeed, disabling both the police vehicle and its occupants to facilitate not being apprehended was the accused’s aim.
·The accused intended to disable the police vehicle and the police officers themselves so as to enable his escape, and in doing so was at least recklessly indifferent as to whether serious harm would be caused to the police officers by his actions.[57]
·From the moment the police vehicle activated its warning lights as it initially left the kerb, the accused was aware that it was a police vehicle, plainly therefore containing police officers. The accused proceeded knowing those facts and knowing that those officers were acting in the course of their duty as police officers, attempting to pull him over. Accordingly, he knowingly committed the offence against those police officers, knowing that they were acting in the course of their official duty. Hence the circumstance of aggravation is established.
[56] Section 21 of the Criminal Law Consolidation Act.
[57] Ducaj v The Queen [2019] SASCFC 152 per Kourakis CJ at paras 6-10.
The prosecution has established that the accused on 19 July 2012 at Salisbury Park, without lawful excuse, drove a motor vehicle towards a police vehicle, knowing that the act was likely to cause serious harm to Richard James Miller, and intending to cause such harm or being recklessly indifferent as to whether such harm was caused, knowing that the officer was a police officer acting in the course of his official duty, contrary to s 29(2) of the Criminal Law Consolidation Act. That represents count 1 in the Information. Having reached that conclusion, it is unnecessary to consider the alternative charge, count 2.
The prosecution has also established that the accused on 19 July 2012 at Salisbury Park, without lawful excuse, drove a motor vehicle towards a police vehicle, knowing that the act was likely to cause serious harm to Thomas Conner, and intending to cause such harm or being recklessly indifferent as to whether such harm was caused, knowing that the officer was a police officer acting in the course of his official duty, contrary to s 29(2) of the Criminal Law Consolidation Act. That represents count 3 in the Information. Having reached that conclusion, it is unnecessary to consider the alternative charge, count 4.
As to count 5 in the Information, the evidence establishes beyond reasonable doubt that:
·The accused drove a motor vehicle without due care or attention. Indeed, the accused drove his motor vehicle in a highly dangerous manner;
·The accused’s act of driving caused physical harm to Detective Brevet Sergeant Conner;
·The accused immediately left the scene of the incident and at no stage reported the incident to police or presented himself to police as required;
·The accused has failed to satisfy the statutory obligations of a driver in relation that incident.;
·The accused has no basis in law to fail to satisfy his statutory obligations.
The prosecution has accordingly established beyond reasonable doubt that the accused left the scene of an accident after causing harm by dangerous driving in that on 19 July 2012 at Salisbury Park, drove a motor vehicle without due care or attention, indeed in a highly dangerous manner, thereby causing physical harm to Thomas Conner, and failed to satisfy the statutory obligations of a driver of a vehicle in relation to that incident contrary to s 19AB(2) of the Criminal Law Consolidation Act.
Verdicts
As to count 1 – Guilty.
As to count 3 – Guilty.
As to count 5 – Guilty.