R v Singh - [2020] SADC 40

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SINGH
Criminal Trial by Judge Alone
[2020] SADC 40
Reasons for the Verdict of His Honour Judge Beazley
7 April 2020
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
Trial by Judge alone - accused charged with the offence of causing the death of a person by driving in a manner dangerous - collision between a pedestrian and a taxi driven by the accused in an easterly direction on Anzac Highway at Kurralta Park at about 10:50pm on 22 November 2017. The accused was not speeding or driving erratically nor had he consumed any drugs or alcohol - there were no persons or vehicles in vicinity of the collision save for the deceased, the accused and one vehicle travelling in a westerly direction. At a distance of about 110 metres to the west of the pedestrian crossing abutting the intersection with South Road, the taxi collided with the deceased with contact made from the front right of the taxi. The deceased, who died instantly, was wearing dark clothing, and was subsequently found to have a blood alcohol reading of 0.29%. The surface of the road was wet - the prosecution case was put on the bases that the accused's lookout was grossly defective either because he was already fatigued or drowsy; or that he became distracted while driving - weight to be given to evidence of expert witnesses as to how long the deceased had been moving across the roadway, and when it was that a reasonable driver in the position of the accused ought to have seen him - relevance of the state of lighting on that part of Anzac Highway at the time of the collision - previous trial before a jury had miscarried - election for trial by judge alone granted by consent - evidence from previous trial admitted as evidence in the subject trial by judge alone.
Verdict
The accused is not guilty of causing death by dangerous driving but is guilty of the alternative charge of aggravated driving without due care.
Criminal Law Consolidation Act 1935 s 19A(1), s 19B(2), s 19B(3); Evidence Act 1929 s 34; Road Traffic Act 1961 s 45(3); Juries Act 1927 (SA) s 7, referred to.
King v The Queen [2012] HCA 24; R v Sabet [2018] SASCFC 18; Jiminez v The Queen (1992) 173 CLR 572; McBride v The Queen (1966) 115 CLR 44; R v Coventry (1938) 59 CLR 633; Hargraves v The Queen [2011] HCA 44; Douglass v R [2012] HCA 34 at [14]; Kamleh v R (1990) 51 A Criminal R 435; BCM v R [2013] HCA 48; R v Hendriksen (2007) 98 SASR 571; AK v Western Australia (2008) 232 CLR 438; GAX v R [2017] HCA 25; R v Keyte (2000) 78 SASR 68; R v Ricciardi [2017] SASCFC 128; Markou v R [2012] NSWCCA 64 at [19]; R v T, WA [2014] 118 SASR 382; R v Uduma [2013] 115 SASR 318; R v Sabet [2017] SADC 11; Kroon v R (1990) 55 SASR 476; R v De Montero [2009] VSCA 255; R v Mayne (1975) 11 SASR 583; Pope v Hall (1982) 30 SASR 78; Police v Melisi [2010] SASC 21; Brooks v Police [2013] SASC 81; H G v R (1999) 197 CLR 414; Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; R v Lenarcyk [2015] SADC 95; R v Duryea [2008] 103 SASR 70; Barker v Police [2005] SASC 363; R v Sabet [2018] SASCFC 18; Dasreef Pty Ltd v Hawchar [2011] HCA 21; R v Farquharson [2009] VSCA 307; R v Ireland (No 2) [1971] SASR 6; R v Huang [2019] SASCFC 38; R v Scholl (No 1) [2009] VSC 198, considered.

R v SINGH
[2020] SADC 40
Criminal trial by Judge Alone
Introduction

Amanpreet Singh (the accused) is charged, on Information, with the offence of driving a motor vehicle, a Toyota Camry sedan, bearing registration no TAXI‑2538 (the taxi) in a manner dangerous to any person and by that conduct he caused the death of Manjit Singh Dhadwal (the deceased).
The Information
Statement of Offence
Causing Death by Dangerous Driving (Section 19A(1) of the Criminal Law Consolidation Act, 1935).[1]
Particulars of Offence
Amanpreet Singh on the 22^nd day of November 2017 at Kurralta Park, drove a motor vehicle in a manner which was dangerous to any person and thereby caused the death of Manjit Dhadwal.
[1] King v R [2012] HCA 24 at [31].
The trial proceeded before me as Trial by Judge without a jury. The accused was arraigned before me, and he pleaded not guilty to the charged offence.
·The background to the charged offence
At about 10.45pm on 22 November 2017, (the date of the collision), the taxi driven by the accused was travelling along the northern side of Anzac Highway, in an easterly direction towards the intersection with South Road.
The Anzac Highway at Kurralta Park is a main arterial road for traffic travelling between Glenelg and the Central Business District. It is divided by a median strip with 3 traffic lanes and a bicycle lane in each direction. There are and were at the date of the collision a number of trees planted on both sides of Anzac Highway, and on the median strip.
The taxi was travelling at about 50 to 60km/per hour in the area sign posted as a 60km/per hour zone.
There were no other vehicles in close proximity to the taxi travelling in that easterly direction towards South Road at Kurralta Park, however there was one dark coloured vehicle (the Hunt vehicle) with lights illuminated travelling on the southern side of Anzac Highway in a westerly direction from South Road.[2]
[2] Evidence of Mr Hunt – TP 18.
The Hunt vehicle was driven by the witness Brodie Hunt.
At a point, approximately 110 metres to the west of the pedestrian crossing at the intersection of Anzac Highway and South Road, the taxi collided with the deceased with the impact made from the right-hand side of the taxi.
The deceased who was then aged 61 years, sustained severe blunt head trauma in the collision, and died instantly.[3]
[3] Agreed facts EX P13, Nos 1-4
An analysis of the deceased’s blood and urine taken during the post-mortem examination disclosed a blood alcohol reading of 0.29 per cent.[4]
[4] Agreed facts – EX P13 No 7.
The deceased was wearing very dark clothing. It was night time. While there was a bus shelter in relative close proximity on the northern side of the Anzac Highway, as it later transpired, no one was present at that shelter, nor were there any other persons in the general vicinity, save for the deceased; the accused; and the two persons who were travelling in the Hunt vehicle on the southern side of Anzac Highway.[5]
[5] Witnesses Mr Hunt and Mr Sheppard, TP 10-37.
Given the absence of other witnesses in the vicinity, the prosecution case was principally based upon data obtained from devices in the taxi including the in-taxi video camera; the airbag in the taxi; the electronic recording device within the airbag; the physical damage to the taxi; the position of the body of the deceased and items on the road surface. There were some difficulties in drawing inferences and some of the conclusions reached by the experts, which were based upon that data.
In particular there were difficulties arising from the position of the in-taxi camera and the quality of the video produced from it. There was also a dispute about some of the data produced by the electronic recording device.
An example of those difficulties involved the issue as to whether the accused had seen the deceased prior to the point of impact.
As it transpired there was other evidence on that topic which included an asserted admission by the accused in his record of interview;[6] and also his reactions on the video film from within the taxi, to which I will later refer.
[6] EX P19 at P 40.
There is no doubt that following the collision, the accused looked to his left, and guided the taxi to a stop safely in the slip lane on the northern side of Anzac Highway.
The absence of other witnesses also impacted upon Court being able to determine the state of the artificial lighting on Anzac Highway at the time of the collision.
It was conceded by the prosecution that the accused had not driven the taxi, at an excessive speed; that he had not consumed alcohol or drugs; that he had not driven erratically in the lead up to the collision; and that the collision had occurred at night when the road surface was wet from rain.
·The prosecution case in brief
The principal issue in the trial was whether the prosecution had proved beyond reasonable doubt that the accused’s manner of driving was so serious a breach of the proper management and control of the taxi “as to be in reality and not speculatively potentially dangerous to the public”.[7]
[7][7] Jiminez v The Queen (1992) 173 CLR 572 at 582; R v Coventry (1938) SASR 70 and 59 633 CLR at 637; R v Scholl [2009] VSC 198; R v Hendriksen [2007] 98 SASR 571; R v Sabet [2018] SASCFC 18; R v Kroon (1991) 55 SASR 476; McBridge v R (1966) 115 CLR 44 at [49].
The prosecution case was that the accused’s lookout was grossly defective at the time of the collision either because he was allegedly fatigued, such that he had experienced a micro sleep shortly prior to the collision, and/or because he was distracted prior to the collision while driving, and thereby failed to see the deceased at any time prior to the collision.
The prosecution asserts that the accused ought to have seen the deceased on the road surface in time to avoid the collision. It also relies upon expert evidence as to fatigue based upon the video produced from that internal camera in the taxi.
Issues in the trial
Among the issues in the trial were:
·Whether the accused had seen the deceased prior to impact;
·Whether the accused ought to have been able to see the deceased at an earlier time and, if so, how long before impact;
·The state of the artificial lighting at various points along the northern side of Anzac Highway;
·Whether it was raining at the time of the collision;
·Which lane on the northern side of the Highway was the taxi positioned at the time of the collision;
·The identification of the approximate point of the collision; including the method of determining that point from the movement of the body of the deceased and the position of items found on the road surface.
·The direction and speed in which the deceased had moved, if any, prior to the collision; and whether the deceased had remained still while using his mobile phone while on the northern surface of Anzac Highway;
·The weight, if any, to be given to the in-taxi video of the accused in the lead up to the collision, in the assessment of alleged fatigue; or distraction;
·The weight to be given to the evidence of the various expert witnesses as to the reconstruction of the scene of the collision including subsequent “drive through video reconstruction”; and the calculation of distances at which it is asserted by the prosecution that the accused ought to have seen the deceased before the collision;
·The weight to be given to the evidence of those expert witnesses as to the method of detection of driver fatigue, including detection by “eye-blink rates”;
·The adverse effects on the accused’s line of sight to the right of the taxi from the fixed position of the taxi devices and the taxi’s “A” Pillar;
·The adverse effect, if any, upon a driver in the position of the accused from glare from vehicles and artificial lights, and the shadowy effect of trees on both sides of Anzac Highway and on the median strip at night;
·The weight to be given to evidence from the driver of the Hunt vehicle travelling along the southern side of Anzac Highway at the time of the collision.
The accused’s case
The accused does not need to prove anything. The prosecution must prove each element of the charge against the accused beyond reasonable doubt. The prosecution must exclude any reasonable hypothesis consistent with the innocence of the accused.
The accused denies that he was fatigued or otherwise grossly inattentive. He denies the allegation that he should have seen the deceased prior to the collision. He referred to the general darkness on the roadway, including the shading effect of trees, coupled with the inclement weather; the dark clothing of the deceased; and the absence of any other people in the vicinity. He also disputed the accuracy of the internal taxi camera, and any conclusion which may otherwise be drawn from that camera as to fatigue, micro sleeps or other distractions.
Some procedural matters
It is necessary to explain some of the history of the subject prosecution leading to the trial eventually proceeding by trial Judge Alone.
·The jury trial
On 23 July 2019, a trial on the subject charge against the accused proceeded before a jury. I was the trial Judge. It continued on 24, 25, 26 and 29 July 2019.
·The View
The Court, the jury and the respective counsel attended a view of the general area of the site of the collision, albeit during the daytime, and approximately 20 months after the collision.
The notes of the view were transcribed.[8] It was conducted at the request of both counsel. It was solely for the purpose of enabling the Court to better understand the evidence which would be called in the trial.
[8] Transcript, 24/7/19, pgs 53–57.
The prosecution had called 6 witnesses during the jury trial, who gave oral evidence. In addition, it tendered by consent a signed statement from the widow of the deceased.
The six prosecution witnesses called during the jury trial were respectively:
·Brevet Sergeant Mark Kingsland who had arrived at the collision scene about 1 hour post collision. His role was to locate pertinent points or pieces of evidence at the scene; provide an analysis of the scene; photograph the scene; measure distances from various points on the road surface and to mark them on a plan.
·Brevet Sergeant Rebecca Guest who attended the scene of the collision with Brevet Sergeant Kingsland. She was subsequently appointed the investigating officer. She produced to the Court the discs of the interviews conducted of the accused by the police. She was contacted by the witness Brodie Hunt on 29 July 2019, very late in the trial. He provided a statement to her then. This led to the trial by jury miscarrying.
·Sergeant Mark Fulcher who had undertaken the exercise of a reconstruction of the events on the night of the collision. He arrived at the scene at about 12.20am.
·Professor Jason White who was an expert pharmacologist and toxicologist. He had been provided with an agreed set of facts in Exhibit P13. It was not in dispute that the blood alcohol level of the deceased at the time of the collision was 0.29 per cent.
·Gurvinder Singh Billing who was the principal director of the corporate owner of the taxi. He gave evidence, inter alia, including the experience of the accused as a driver; the position of cameras, mobile phones and other equipment positioned to the centre and right of the driver.
·Professor Siobhan Banks who gave evidence of an expert nature on the topics of sleep deprivation, the role of fatigue in drivers and the method of measuring such fatigue including by eye blink rate detection.
The prosecution also tendered by consent a signed statement by the deceased’s wife Paramjit Dhadwall. It referred to a mobile phone call from the deceased at about the time of the collision.
The accused
The accused exercised his right to elect not to give evidence at both trials. I repeat that the videos of his two interviews by the police had been tendered in evidence. The first video recorded the interview by police officer Pople while both were seated in a police vehicle soon after the collision. That video recorded the accused’s shock and distress. It also provided some evidence of the state of the inclement weather at the time and the general darkness, notwithstanding the additional illumination of the area from police vehicles, ambulance vehicles and other vehicles which had arrived after the collision.
The accused did, however, tender a statement of agreed facts and called one witness:
·Professor Andrew Dawson who gave evidence of an expert nature within his established expertise in the field of sleep deprivation and fatigue in drivers.
He explained that in order to be able to accurately determine fatigue from eye blink rates there was a need for specialist equipment and for the placement of that equipment to accurately measure eye blink rate detection.
It had been anticipated that, on 30 July 2019, a statement of additional agreed facts, pursuant to s 34 of the Evidence Act would be tendered, and that this would complete the evidence to be called. At that time, there was no evidence from anyone purporting to be an eye witness.
Both counsel intimated that they would complete their final addresses on 30 July 2019.
·Mistrial and discharge of the jury
On the morning of 30 July 2019, counsel for the DPP informed the Court that a person (Brodie Hunt), who asserted that he was an eye witness to the collision had approached the police, and that he wished to give evidence at the trial.
Counsel for the accused objected to leave being granted for that witness to be called so late in the trial.
It was plain that in the event the prosecution was permitted to call that witness it would inevitably lead to the trial either being adjourned for sufficient time to enable the accused to make such investigations as he was advised or alternatively lead to a mistrial because of potential unfairness to the accused.[9]
[9] Killick v R (1981) 147 CLR 565 and R v Soma [2003] HCA 13.
While the reasons for the delay in the witness coming forward were entirely unsatisfactory, the application placed the Court in an impossible position. It was overwhelmingly in the interests of justice on such a serious charge that the witness ultimately be heard.
I delivered brief reasons to that effect, explaining that there was no alternative but to declare a mistrial and to discharge the jury.
·Application for trial by Judge Alone
Subsequently both counsel made an oral application that a new trial proceed before me as Judge Alone; that the evidence which was before the Court at the jury trial be received as evidence before me in the trial by Judge Alone, and that the trial be listed as soon as possible after allowing both sides some opportunity to conduct investigations.
I was satisfied that none of the evidence called in the jury trial gave rise to issues of demeanour. It was principally evidence of an expert nature.
On 31 July 2019, the accused’s solicitors filed the formal application for trial by Judge Alone pursuant to s 7(1)(a) of the Juries Act 1927 and the relevant certificates pursuant to Rules 41(2) and 44(2) of the Juries Rules 1996. The application was supported by counsel for the prosecution.
I agreed to the course put forward by the respective counsel. I granted an extension of time pursuant to the Juries Act. [10]
[10] See R v Gavare [2011] SASCFC 38.
Elements of the charged offence
An accused person commits the charged offence if he drives a motor vehicle in a manner dangerous to any person and by driving in that manner causes the death of the deceased.
The charged offence consists of three elements. The prosecution must prove each and every one of these elements beyond a reasonable doubt. The accused does not have to prove anything. It is for the prosecution to exclude any reasonable hypothesis consistent with the innocence of the accused.
·The three elements as applicable to the facts of the subject case are as follows:
1.That the accused was the driver of the taxi at the time of the collision, and drove voluntarily.
This element is not in dispute. The accused was the driver of the taxi at all relevant times. He admitted that he was so in the respective police interviews.[11] There was no dispute that he drove voluntarily.
2.That the taxi was driven by the accused in a manner which was dangerous to the public.
This element is the central issue in dispute in the trial.
The prosecution must prove that the manner of driving was a grave departure from the standard of care expected of a road user, in that it involved a risk of injury or death to others which risk exceeds the ordinary risks of the road and amounts to a real danger to the public, and a manner of driving which is treated as a serious crime.
This is to be assessed objectively. The question is not whether the accused intended to drive or appreciated that he was driving in a manner dangerous to the public, but whether in the judgment of the Court, a reasonable person in the position of the accused would have appreciated that he was driving in a manner dangerous to a person or persons who as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.
3.That by driving in that manner at the point of the collision the accused caused the death of the deceased.
The prosecution does not need to prove that the dangerous driving was the sole cause of the death of the deceased. It must however prove that the driving by the accused in that manner was a substantial cause. Accordingly, if I am left with a reasonable possibility that the deceased had in his alcoholic state walked from the dark in front of the taxi giving no time for the accused to try to avoid the collision, or that he came out of a blind spot, and could not have been seen before the collision then the question which arises is whether the driving of the accused could be said to be a substantial or immediate cause of the collision.[12]
[11] EX P16 and EX P18.
[12] Leaf-Milham v R (1987) 47 SASR 499.
Alternative charge

Pursuant to s 19B(2) of the Criminal Law Consolidation Act, in the event that I find the accused not guilty of the charged offence, I may bring in a verdict of guilty to the alternative, less serious offence of Aggravated Driving Without Due Care contrary to s 45 of the Road Traffic Act, 1961.[13]
[13] R v Jaeschke [2007] SASC 321
Trial by Judge Alone
On 6 November 2019, the accused was arraigned in respect of the charged offence of causing death by dangerous driving and pleaded not guilty to the charge.
Mr Foundas, again, appeared as counsel for the prosecution and Mr Anders, again, appeared as counsel for the accused.
·Necessity for detailed Reasons
In a series of recent decisions, the High Court of Australia has stressed that sufficient reasons must be given by trial judges and, indeed, intermediate appellate courts, which properly explain the verdict.[14]
[14] Douglass v The Queen [2012] HCA 34 at [14]; BCM v The Queen [2013] HCA 48; AK v Western Australia (2008) 232 CLR 438; Fleming v R (1998) 197 CLR 250; Gax v The Queen [2017] HCA 25; R v Ricciardi [2017] SASCFC 128 and R v Sabet [2018] SASCFC 18.
Those reasons must include the principles of law applied by the judge, and the facts as found by the judge. They must reveal the reasoning process linking the relevant principles and justifying the findings of fact.
The reasons must include any warnings that are to be taken into account; a discussion of the arguments on disputed factual questions; and the outcome of the arguments.
A trial Judge however is not obliged to “express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law”.[15] The reasons are not required to be lengthy or elaborate and must be read as a whole.
[15] Markou v The Queen [2012] NSWCCA 64 and R v T, WA [2014] 118 SASR 382.
In the subject case, it has been necessary to refer to much of the evidence to explain the factual issues, and to endeavour to resolve them.
Legal directions
I do not propose to detail all of the obvious directions of law. I do however remind myself of some of the fundamental directions which apply in every criminal trial, and some of the directions specific to the subject trial, as follows:
·The accused comes before this Court with the presumption of innocence in his favour. The law regards him as innocent unless and until his guilt has been proved by the prosecution beyond a reasonable doubt.
The burden of proving the elements of the charge lies wholly on the prosecution. The prosecution must rebut any reasonable hypothesis consistent with the innocence of the accused. The accused is not required to prove anything.
·I must assess each witness as to their truthfulness and their reliability. I am entitled to accept the evidence of the witness in whole, in part, or not at all. Even if I were to find that a witness may be unreliable about some of the evidence it does not follow that I must not accept other parts of that witnesses’ evidence.
·As to the question whether the accused’s driving was in a manner dangerous to the public I must put to one side the fact that the deceased had died. Accidents caused by driving without due care and attention or even without any negligence at all may have the same effect namely resulting in death. I must bring an unprejudiced mind to bear on the case and reach my decision without sympathy or prejudice.
·In accordance with directions given by superior Courts I remind myself “of the power to convict of a lesser offence and to consider in ascending order of seriousness whether the manner of driving was not negligent at all or was such to show that the accused was driving without due care or attention[16] or such as to be dangerous to the public”.[17]
·I direct myself that if a reasonable person in the position of the accused knew or should have known that there was a significant risk of inattention by fatigue while driving yet continues to drive the vehicle that inattention would constitute driving without due care and attention and may constitute driving in a manner dangerous to the public depending upon the circumstances. The crucial question would be how the fatigue came upon the driver and whether he had sufficient premonition of it.[18]
·The accused does not have to prove anything. In the subject case, he elected to remain silent and to leave it to the prosecution beyond reasonable doubt if it were able to do so. I direct myself that it is the accused’s right to elect not to give evidence and that he must not be criticised for doing so. I have accordingly drawn no inference adverse to the accused in consequence of his election.
·When interviewed by the police the accused denied the charged offence. He also denied suffering from a loss of sleep. The content of the interviews is evidence in the trial and must be considered by me, albeit that the interviews were not given on oath nor subject to cross-examination. I may have regard to the apparent shock suffered by the accused disclosed in the first interview immediately after the collision, and his lesser knowledge of the English language.
·In this case various witnesses were called by the prosecution and the defence who were qualified as experts in their respective fields. The ordinary rule is that witnesses may speak only to the facts and not express opinions. An exception to the rule is that persons who are qualified in a particular area may express an opinion which falls within their particular area of expertise.
I am entitled to accept or reject any opinion evidence when sitting as the sole judge of the facts, however before rejecting that evidence I must give consideration to it and determine how it fits in with any other evidence that I have heard and have accepted on that topic.
[16] See Criminal Law Consolidation Act s 19B(2) and the offence of Aggravated driving without due care under the Road Traffic Act, 1961, s 45(3)(a).
[17] See R v Jaeschke [2007] SASC 321 at [33]-[34] per Doyle CJ.
[18] See Kroon v R (1990) 55 SASR 476.
The evidence in the Trial by Judge Alone
Each counsel tendered the evidence which they had tendered at the trial by jury, including each of the respective exhibits and statements of agreed facts, on the basis that it constituted the evidence which would have otherwise been given by those witnesses in the subject trial.
A number of other matters were agreed. Insofar as they are relevant, I will detail them shortly. They were admitted by the accused pursuant to s 34 of the Evidence Act 1929. Brevet Sergeant Guest was called again as a witness by the prosecution as to the taking of Brodie Hunt’s statement in July 2019.
In addition, three other witnesses gave evidence in the subject trial. They were respectively, Brodie Hunt; and the witness to whom I will refer to as “J S” called by the prosecution, and the motor vehicle collision reconstruction engineer, Mr Charles Aust, who was called by the accused.
Synopsis of the evidence
Brevet Sergeant Kingsland was at the time a major crash investigator with considerable experience, having attended 10 to 15 motor vehicle accidents each year over an eight-year period.
He attended the scene of the subject collision together with Brevet Sergeant Guest about one hour after the collision. He explained that when he arrived it was apparent that it had been raining, the road was wet and the area illuminated by artificial street lighting. He noticed that there was illuminated signage within a bus shelter at a bus stop on the northern side of the road near to where the collision had occurred.
When cross-examined, he accepted that the bus shelter signage at night is designed to amplify the advertising material in the shelter, rather than contribute to the state of lighting on the road surface.
He located parts of a mobile phone; a substance which he described as a ‘smear’ of skin; two leather shoes; a Seniors Adelaide Metro bus pass and various other items on the road surface. He could not find any skid marks consistent with a vehicle braking. He later prepared a scale plan produced from measurements he had taken at the scene.[19] He marked on that plan the position of the items which he had located. They were generally in the area of the line dividing the left and middle lanes. He also took some 19 photographs at that time.[20]
[19] EX P1.
[20] EX P2.
He identified, as point “A”, the approximate area of impact in which the collision had occurred, which was just an “estimate”, as he could not identify a specific point.[21]
[21] TP 34.
He said that because of the rain at the time of his attendance, he was unable to use a theodolite on that night. He did return to measure the scene, four days later and was able to log that data on the plan in Ex P2. He had previously marked the positions of various items with a heavy coat of paint.
He had selected that approximate area of impact having regard to where he found the mobile phone parts; the smearing of skin; the position in which the deceased’s body had come to rest, and to the damage to the right side and windscreen of the taxi.
The position of the deceased’s body was clearly identified in photograph 8 of Exhibit P2. It was found in the middle lane with the position of the accused’s head marked with a yellow circle on the road.
He opined that items of property would have moved in a forward direction in an impact and therefore the collision must have occurred at a point to the west of that location of those items on the road surface. He had marked on the plan, a shaded area which was the shadow cast upon the roadway from a roadside tree which shadow was caused by the street light being directly behind it.
He acknowledged however in cross-examination that he had only marked trees of significance to him, in that area, and that none of the trees on the median strip were marked on that plan, nor those on the southern side of Anzac Highway.
He did not sit in the taxi’s driver’s seat when he took photographs of the interior of the taxi.[22] He also deposed that the photographs taken by him, did not represent an accurate assessment of the lighting at the scene with some of the subsequent photographs being brighter than the state of the lighting on that night.[23] Some of the photographs had been artificially lit by the flash on the camera.[24] He explained that he was able to move around the collision scene with the artificial lighting, however he was not asked whether the level of lighting at the time of the collision was similar having regard to the arrival of other vehicles at the scene with their lights illuminated.[25]
[22] See photograph 19 in EX P2.
[23] T 45-46.
[24] T 49, 50, 61.
[25] This was apparent from the video of the first interview.
Photograph 11 displayed the front right-hand corner of the taxi including dents to the bonnet; the front bumper; a missing shroud from the front light; a dent to the roof pillar; and fractures to the front windscreen with some hair. There was no damage to the front passenger’s side of the taxi.
He took photographs of various items within the taxi including the taxi dispatch system display next to the steering wheel, and to the right of which was a hand-control for that system; the position of the taxi CCTV camera pointing to the driver’s side of the vehicle, the blank blue screen;[26] and the taxi’s right side “A” Pillar.
[26] T 65-68.
He said that he was not aware whether there were any eye witnesses. He had assumed that the deceased had walked from the southern side of the road. He did not factor into his calculations whether the deceased had stopped on the median strip or whether the deceased had made a mobile phone call.[27]
[27] T 85.
He had subsequently observed the in-taxi CCTV video. He accepted that, following the collision, the accused had looked to his left and moved the taxi safely into the slip lane. He thought that it was parked about 30 metres from the body of the deceased.
When cross-examined he said that the finding of human skin caused by the body sliding across the road is not uncommon, and that he had correctly marked each of the relevant items on the plan.
When asked about the front right “A” pillar of the taxi in photographs 17 and 19, he accepted that a vehicle’s “A” pillar can be a blind spot on the right-hand side of the driver depending upon his height.[28] It was an agreed fact in Ex D22 that the deceased was 169.2cms tall and that he weighed 64 kilograms. The accused is 170cms tall.
[28] TP 89-90.
He contrasted the numbers of people in Hindley or Rundle Street in the city at 11.00pm with what he described as a completely different scenario on Anzac Highway at that time. He opined that the taxi had been travelling in the left lane, notwithstanding that the deceased’s body was found in the middle lane.[29] When re-examined, he deposed that his opinion of the approximate area of impact was unaffected by whatever direction the deceased had been coming from. He confirmed that the deceased was wearing dark clothing which was to be contrasted with the reflective clothing worn by police at night,[30] and highlighted in the photographs.
[29] TP 43.
[30] TP 81-82.
Sergeant Mark Fulcher is an experienced major crash reconstruction officer, one highly qualified both academically and in terms of experience, to express opinions as to motor vehicle accident reconstructions. He arrived at the scene of the collision about one-and-a-half hours after the collision and was provided with information by Brevet Sergeant Kingsland.
He also opined that the impact had occurred in the northernmost lane because the pieces of debris were located in the area bordering that lane, and because the impact had occurred to the deceased’s left side, and from the driver’s right side of the taxi.
He said that because there were no eye-witnesses (at least at the time he gave his evidence) he could not say with certainty the direction taken by the deceased before the impact. However, he inferred that the deceased must have been moving towards the northern side, because the majority of injuries sustained by the deceased were to the left side of his body.
·The lane in which the accused was driving
The question as to the lane in which the accused was driving was of relevance to the time period that the deceased was on the road surface. Mr Fulcher explained the basis for his opinion as to the left lane, namely, that when the deceased was struck by the right side of the taxi, his body would have been swept over the side of the vehicle to the right and not to the left.[31]
[31] TP 106.
This of course is not an exact science.[32] Mr Fulcher however explained that his opinion was based upon previous collisions, and the injuries received by the deceased. Ultimately, I have accepted that the accused was indeed driving in the northernmost lane in the lead up to the collision.
[32] See R v Sabet [2018] SASCFC 18.
He opined that if the accused had been driving in the middle lane, it was highly unlikely that any of the debris would have been found within the left lane. He repeated that the initial damage occurred on the driver’s right side of the taxi bumper bar. He explained that the deceased would have had momentum in the direction he was moving at the time of impact even though the taxi’s momentum was in a forward motion.
·The movement of the deceased’s body
He referred to photograph 12 of exhibit P2 indicating that the deceased’s legs would have been struck, and as the taxi moved forward, the upper body would stay in the same position causing it to rotate around its centre of mass. He opined that the hip area would have struck the vehicle and the body would have continued to rotate as the vehicle moved forward.
He deposed that the damage to the windscreen was likely to have been caused by the deceased’s left elbow while the damage to the leading edge of the A pillar is likely to have been caused by the left side of his head. He opined that in the period of rotation of the body, the deceased’s legs would likely have been positioned above his head. Finally, the body would have been knocked to the right side, which explains the final resting place in the middle lane.
When cross-examined, he repeated that the approximate area of impact was principally based upon the fact that all of the debris was positioned forward of that location.[33] He repeated his assumption that the deceased would have been facing in a north or north-west direction.
·The taxi’s airbag system
[33] TP 177-178.
He deposed that the taxi had an airbag system installed which continuously monitors and gathers data from different sources within the vehicle. A crash data retrieval tool was used to extract data from the taxi. That information was set out in Exhibit P9. The system would look at the crash pulse for the airbags for about 200 milliseconds before it decided to record the data. The airbag is predictive, not reactive.
He said that from the data in Exhibit P9, some four seconds before the impact, the taxi was travelling at 58 k/ph.
·The brakes
Mr Fulcher had expressed his opinion that the brakes were not applied in the taxi, until a point after the collision.[34]
[34] TP 120.
A different view was expressed by the accident reconstruction expert, Mr Charles Aust, to whom I will later refer.
I do not need to resolve that dispute. I have already referred to the agreed fact on this topic.[35]
[35] See footnote 6, transcript 7/11/19 at Page 51.
Mr Fulcher said, on a different topic, that the recording of the accelerator rate indicated that the accused had pushed down and lifted up the accelerator to keep a relatively constant speed.
He also accepted that there was a controlled movement by the accused to enable him to steer the taxi to a stop.[36]
·Perception response time
[36] TP 123.
He explained that it was necessary to determine the point at which the deceased would have become an immediate hazard as opposed to a potential hazard only. Mr Fulcher referred to the topic of a “perception response time”, stating that where a driver was to see a pedestrian on a median strip but was unsure whether the person was actually going to step out, about five seconds or greater, from impact, the driver might regard it as a potential hazard but not requiring any response other than slowly moving within their lane.
By contrast, within the five second timeframe, where the driver believes there is going to be a collision, then the perception response time is the time it takes for a driver to decide if it is necessary to do something. He accepted that the response times differ because of what he described as, “eccentricity”. He opined that the average time is 2.3 seconds covering the time between when a driver recognises that hazard and recognises the need to do something.[37]
·Walking speeds
[37] TP 125-128.
Mr Fulcher purported to give evidence as to walking speeds of pedestrians, and in particular, an average normal walking speed. He said that there are studies on walking speeds specific to ages and gender. The average normal walking speed of a 60-year-old male is 1.28 metres per second. The average fast speed is 2.35 metres per second. He said however, that the studies upon which he relied did not provide average slow speeds, nor did they factor in the effects of alcohol at all, let alone the high level of alcohol in the deceased’s blood.
He had prepared calculations on an assumed straight walking line of 25.9 metres.[38] He had assumed that the deceased had crossed the road from the southern side of Anzac Highway heading in a northerly direction, crossing five lanes and being hit in the sixth lane. It would take 20.23 seconds to walk that 25.9 metres at a normal pace. That is from the southern side kerb of Anzac Highway to the lane nearest the kerb on the northern side.
[38] TP 132.
He accepted, however, that he did not know what direction was taken and whether the deceased had stopped at any particular point. Further there was no direct evidence that the deceased had crossed from the southern side kerb to the median strip and onto the northern side roadway. No one saw the deceased on the southern side kerb. No one saw the deceased cross the 3 lanes on the southern side to the median strip.

I do not accept that the accused ought to have seen him on the southern side especially as the accused was driving in the northernmost lane in the opposite direction.
·Conspicuity
He accepted that it was impossible for him to determine when, or if, the accused ought to have seen the deceased.[39] This was because the science does not provide for it, as it must allow for a number of factors including “conspicuity”.He did accept that whether a person was conspicuous or not would be affected by a number of factors, including whether they are wearing dark clothes; whether that person was standing still, because if so, he would have been less conspicuous than somebody moving, and, the quality of any lighting on the roadway.
[39] T 134.
He accepted that if there were brighter objects such as the bus shelters, that would tend to make the deceased less conspicuous.
He opined that it would have taken 7.56 seconds at a normal pace and 4.17 seconds at a fast pace from the point of stepping off the kerb on the median strip some 9.80 metres to the approximate area of impact and less if the impact had occurred in the middle lane.
He accepted that the deceased would have been more conspicuous had he been wearing light clothing and moving more quickly. In order to reach his conclusion, he had assumed a path taken by the deceased, and that the path so taken would have been outside the area of shadow caused by trees.
He thought that the artificial lighting at 12.23 am afforded “reasonable visibility”.
·The taxi CCTV, GPS and distances
Mr Fulcher had examined the taxi CCTV with the GPS locations on it. He said that when he did so, it became apparent that there was a five-metre difference between where the taxi in fact came to rest and the location revealed by the GPS data. He conceded that the GPS is not “pinpoint”, and is accurate to within, at best, three metres, at worst, 30 metres.
He expressed the opinion that if there had been perception of a hazard from the deceased stepping off the median strip and walking 7.75 seconds to impact, the taxi would have been 120 metres from the area of impact. If the deceased walked faster and had taken 4.17 seconds to cover the distance, the taxi would have been about 80 metres away. He opined that using 58k/ph and the 4.17 seconds the taxi should have stopped within 60 metres if the response time was 2.3 seconds, and within 70 metres if the response time was 3.1 seconds.
He detailed his assumptions,[40] including a speed of 58 k/ph; a wet bitumen road; a braking response as opposed to a braking and steering response; together with his assumption as to the point at which the deceased had stepped onto the northern side of the road to become a hazard.
[40] TP 149-152.
In cross-examination, Mr Fulcher accepted that at night various factors adverse to vision may occur including from oncoming lights, which make it harder for someone to pick up hazards; and that where a road is wet, lights can introduce more glare. He also agreed that there can be a strobing effect from headlights of oncoming traffic and trees or posts.
He acknowledged that care must be taken when relying upon photographs with protracted periods of exposure because they may give an appearance that there is more light than there actually was at the time.
He also accepted that the A pillar in a vehicle may create a blind spot, particularly given the side of some monitors in taxis adjacent to the driver on the right-hand side.[41]
[41] TP 161.
He accepted the proposition of counsel that a person standing on a road surface would be more easily recognisable than a person laying on the road or even kneeling on the road, because it is the shape that you would recognise. He repeated that he had been provided with no information as to the movement by the deceased.
When he gave his evidence, he had understood that there were no eye-witnesses. He was also unaware that the deceased had made a mobile call which he had never completed, nor whether the phone had contacted the taxi. He accepted that if a pedestrian suddenly appeared from apparently “nowhere”, the perception response time is necessarily reduced.
Brevet Sergeant Rebecca Guest is and was at the time a senior officer in the Major Crash Investigation Unit, who had been assigned the role of investigating officer in respect of the subject charge. She attended the scene of the collision with Brevet Sergeant Kingsland about 1 hour after the collision. She obtained the mobile phone records of the accused during the period of 24 hours leading up to the time of the collision. She accepted that data usage does not necessarily mean that someone physically uses the phone at that time. Incoming calls only indicate that a call has been made and not whether it has been answered.
·The first interview
She produced to the Court the disc of the interview conducted by Officer Pople at the scene of the collision.[42] On any view the accused was distressed during that brief interview sitting in the police vehicle.
·The second interview[43]
[42] EX P16.
[43] EX P19 at p37.
She had conducted a second interview with the accused at the Port Adelaide Police Station on 20 December 2017 after the bulk of the investigation had taken place.[44]
[44] EX P18.
There were some early difficulties in the latter interview as there was some delay before an interpreter could be located, and “attend” by telephone. The accused had believed that when the collision occurred, his vehicle was travelling in the middle lane. He thought that he had been travelling straight in the middle lane towards the Entertainment Centre.
I accept that the accused was not being dogmatic about the lane. If it was raining it may have been difficult for a driver to determine whether the taxi was wholly in one lane or partly in both the left and middle lanes.
The statements by the accused in those interviews, including self-serving statements are before me for all purposes. The prosecution cannot exclude the self-serving statements. See Spence v Demasi;[45] and R v Ferri.[46] He explained his recollection of the events leading to the collision.
[45] (1988) 48 SASR 536 at 540
[46] [2019] QCA 67.
It was suggested to him that he “looked very tired” on the in-taxi video. He denied that suggestion pointing out that he had only started to drive the taxi at 5.00 pm.
He was asked “whether he saw the pedestrian at all”. He said, in response, “No if I see, I, I, you know I try to, you know, move that car in any lane but I didn’t see anyone”.[47]
[47] EX P19 at p40.
He plainly had difficulty explaining himself in the English language. I will take that into account when considering whether any admissions were made by him.
He said that he had received a message from the Suburban Taxis on the message dispatcher to the effect that he should travel to the Entertainment Centre. He thought that he had looked at the despatch screen for only one second.
He explained that he did not touch his mobile phone at all after delivering his last customer at Glenelg earlier. He was experienced at driving the taxi in the night shifts.
Brevet Sergeant Guest confirmed that from the accused’s taxi records that the last passenger dropped off by the accused was indeed at Glenelg.
She said that police had spoken to some people at the collision scene but they were unable to get a statement from anyone who asserted that they had seen the collision.[48] She explained that attempts had been made to determine whether the bus ticket had been used by the deceased but no results were obtained.
[48] TP 220.
She had measured the distance of 135 metres from what was said to be the approximate area of impact to a pedestrian crossing backwards to the west. There was another and closer pedestrian crossing on that side which was about 72 metres from the approximate point of collision. She accepted that the pedestrian crossings to which she was referring involved a break in the median strip and were not governed by lights.
She said that she had also measured the distance from the approximate area of impact to a pedestrian crossing to the east on South Road as being 110 metres.[49] South Road was illuminated by artificial lights, traffic lights, pedestrian lights and lights from vehicles.
[49] TP 242-243.
Brevet Sergeant Guest was subsequently cross-examined as to how she became aware of the existence of Brodie Hunt. She had been made aware of him by a member of the deceased’s family on the weekend prior to the day fixed for the completion of the jury trial.[50] She was cross-examined about various passages which were allegedly not included in his typed statement, and emails between Brodie Hunt and the deceased’s nephew. Ultimately and very properly that cross-examination was not pursued.
[50] TP 38.
Brodie Hunt was the witness who had given a police statement on 29 July 2019. He said that about 11.30pm he was driving his black Ford Fiesta motor vehicle west on Anzac Highway with his friend “JS” positioned in the front passenger seat. They were travelling to a block of units on the north-eastern side of Anzac Highway directly behind the bus shelter. He explained that as he crossed South Road heading in a westerly direction he was in the lane nearest the median strip intending to do a U-turn and travel back to the unit.
He said that, “by instinct he observed …a gentlemen walking on the road, heading towards the bus stop area, across the road”. He deposed that as he looked back “I saw some lights coming and I don’t know, something just made me look back again, and as I looked back I witnessed the taxi run straight into the person, I saw him get hit, and the gentleman went up in the air… the thud was that loud it was”.
He explained that he drove over the median strip, parked about 10 metres from the body lying on the ground and telephoned 000. He said, “JS went up to the guy on the ground, and as the ambulance crew was telling me what to do, I was relaying that to JS.” He deposed that it wasn’t raining, but it was a light mist and that he didn’t have window wipers operating.
He said, “I could still see you know quite clearly and you know everything quite visible so”. He was asked to describe the lighting and said, “well it was, it was light enough to be able to see the gentlemen walking across the road, because as you can imagine I could see him crossing the road and you know seeing the headlights coming from the opposite direction coming that way”.
He was asked where along Anzac Highway did he first notice the man who was hit by the vehicle. By reference to the plan he said “if you are looking at the trees in the median strip there I’d probably say the last couple, like through this yeah, the last two I noticed him, yeah probably the 1, 2, 3, 4^th one.” He was asked again about the tree, and said “It would be tree number 4 because when approaching the unit, I looked that way and saw the gentlemen walking like not literally next to me but saw him crossing the road.” He said he saw him approaching the units and then as he had driven further up the road he looked again to watch it and saw it happen.
He said that when he first saw him, the deceased wasn’t close to the median strip, but was already on the road walking, heading towards the northern kerb. He said he was walking diagonally across the road. He said he was walking moderately. He said that it was when he looked back that he saw the headlights on the taxi and that by the time he looked back the collision had occurred.[51]
[51] TP 17.
He was then asked a leading question about the point of collision being that near the edge, between the lane closest to the kerb and the second one in the middle, and he responded “yes”. He then explained that he saw the deceased walking but didn’t see the headlights of the taxi until he was pretty much parallel because “I saw him then I was looking at the units and then as I got further again that’s when I saw the lights and it all happened.” He said that when he observed the taxi it was in the lane closest to the footpath.[52] He did a U-turn, “at the two‑little walk through bits for pedestrians”.[53]
[52] TP 18.
[53] TP 19.
When cross-examined he referred to the U-turn point, as that marked on the plan as Kennard’s Hire, Glandore. He accepted that he was looking through the driver’s front side window along Anzac Highway. He said that he was looking back over his right shoulder and he saw and heard the collision.
He was asked about his previous evidence that he couldn’t see any brake lights on the taxi and whether that was because he had already driven past the scene of the accident when the accident occurred.
He accepted that he must have looked slightly back over his right should when the collision occurred. He conceded that he had not given the police a statement until approximately 20 months after the collision, save for a brief statement to the police at the scene of the accident. He agreed that he had been in communication with the family of the deceased since the accident. He had kept in communication with the nephew of the deceased.
The witness JS was the front seat passenger in the vehicle driven by Brodie Hunt. He explained that it was about 11.00 or 11.30, when they were returning to the unit on Anzac Highway. He was asked whether he saw the collision and said that he didn’t see it. He said that Brodie Hunt had told him “did you hear that and see something”. He agreed it was a big thud. The vehicle driven by Brodie Hunt was travelling in the lane closest to the median strip travelling in a westerly direction.
When asked about the weather conditions he said it was drizzling, “…it was raining, it was jumping down a bit.” He thought that the windscreen wipers on the car were in fact operating. He was at the time looking down at his mobile phone and didn’t look up until he heard the thud. He said that as one goes past the block of units there are some set points for pedestrians to cross, further up the Highway.
He said that from the position on the north-eastern side of the road after the U-turn he could see something laying on the ground.
He thought the taxi driver had hit the bus stop, but then saw a body on the ground. He accepted that he told the police that the deceased had dark skin, dark jeans and a dark shirt. He agreed that he told the police that “it was night time, it was dark, there were street lights but it was fairly dark”. He said he thinks he told the police that visibility wasn’t very good. He also told the police that the roadway was wet and that it had been raining most of the night.
Jason White is an expert pharmacologist and toxicologist. He had been provided with an agreed set of facts in Exhibit P13 which detailed the results of the post-mortem examination of the deceased and the analysis of samples of the deceased’s blood and urine. It was not in dispute that the blood alcohol level of the deceased at the time of the collision was 0.29%.[54] He explained the effects of alcohol including upon movement; time to react to events; on ability to concentrate and also disinhibition.
[54] TP 193-194.
He explained the physical basis upon which alcohol is absorbed into the blood and circulates the body including the brain. He explained that 0.29% is a very high reading and that for a large proportion of the population they would be asleep and not able to walk properly. Where someone has a high degree of tolerance the effects would be different. Insofar as the deceased was said to be walking across the road when struck he must have had a high tolerance to alcohol. He deposed that even in that case his gait would not have been normal and would have reflected signs of being affected by alcohol. It would adversely affect thinking, decision making and disinhibition.
He said that the deceased in such a case would be more likely to take a risk in crossing the road than if he was sober and that if he needed to get out the way he would be less able to do so.
He was shown the deceased’s antecedent report and that he had appeared in Court involving the abuse of alcohol on 5 occasions between 1992 and 2009. He also analysed the deceased’s drinking history and said that he had a recurrent drinking problem since he was aged 21.[55] He noted that those so affected may step on the roadway not being able to gauge distances or car speed and also act impulsively not taking much notice of what’s around them. He repeated in re-examination that the deceased would have been able to walk but it would not be the same manner of walking as a sober person.
[55] TP 203-206.
Gurvinder Singh Billing was the principal director of the corporate owner of the taxi. He explained that he had a verbal agreement with the accused who could drive the night shift and keep the taxi for about a 12-hour shift. He said that the accused had never been involved in any other motor vehicle crash and he looked after the taxi and was always responsible. He highlighted the position of a camera, mobile phone and other equipment which were positioned to the centre and right of the driver of the taxi.
He explained that the monitor is the dispatch system and that the driver picks up work from the monitor. There is a beep and a job comes in. It is picked up by pressing a button and can be done by remote or on the touch screen.[56] There is a centre console which is a payment machine and there is a screen above the payment machine as the taxi fare meter. There were no mechanical issues with the taxi. He explained the driver log on and log off report in Exhibit D20.
[56] TP 229-230.
It was clear that taxi drivers are exposed to a number of distractions from devices in taxi’s including dispatch monitors.
It was lawful to have those devices in the taxi and that they could be used. However, that lawfulness does not absolve the driver for adverse consequences from being distracted while driving.
Paramjit Dhadwal, the widow of the deceased, provided a statement dated 18 March 2019 which was admitted by consent. She explained that the deceased was on that day going to meet a friend at a restaurant and was looking for work opportunities. She said that about 10.45pm the deceased had telephoned her, but their niece had answered. However, by the time that she passed the phone to her, his conversation had ceased. There was no dispute as to her evidence save for her deposing that the deceased “was a social drinker”. That plainly was not the case.[57]
[57] See EX P13 and D14.
Professor Siobhan Banks is a Professor in the School of Psychology, Social Work and Social Policy at the University of South Australia. She is co‑director of the behaviour, brain, body research centre which assesses sleep and fatigue and also neuroscience.
Her area of expertise is the consequence of sleep deprivation and counter measures to improve fatigue in the workplace and the effect of fatigue on workers.[58] She has undertaken a significant number of studies including in the United States for about 5 years.
[58] TP 244-247.
This was the first time that she had given evidence in Court and accordingly also the first time in relation to a criminal charge.[59] She described sleepiness as a specific state experienced right before falling asleep, whereas fatigue is more insidious and more a general feeling that may be experienced over a period of time. She explained that fatigue can impair function including memory, decision making generally slowing cognitive awareness, creating slower reaction times, adversely affecting peripheral vision and becoming easily distracted.
[59] TP 250.
She said that the concept of sleep debt was where a person does not get enough hours of sleep needed for healthy functioning such that one night of good rest does not fix poor sleeping over a month period. She described a micro sleep as a tiny sleep lasting for only two or three seconds.[60] She was of the view that a micro sleep could be observed without having an EEG or data plugged in from longer eye blinks and slow eyelid movements or a vacant stare or relaxation of the muscles. She explained that a head nod indicates the fact of a micro sleep and that the individuals are very fatigued.
[60] TP 253-254.

She opined that a driver would be aware of fatigue when driving because of the drowsiness and particularly if there was a head nod.
She had examined the in-taxi CCTV in Exhibit P4. She opined that there were very clear periods of fatigue identified in that vision which were manifested in behaviours associated with falling asleep.[61] She said that the effects of fatigue were upon the driver for the entire period of the footage with poor reaction times, the effects of disengaging with the environment or lack of attention, and there were clear periods where the fatigue was accumulating. She said she saw at least one head nod in the footage. She said that she observed slow eyelid closures and eyerolls indicating fatigue. The eye closures in the footage were longer although she could not time them in the video equipment that she had.
[61] TP 264.
She was of the opinion that the accused had a reasonably high level of fatigue because of the high frequency in the slow eyelid closures and blinks and then a head nod. She said that those signs would have been obvious to the accused. When she was shown the video, she was of the opinion that the accused was manipulating devices within the vehicle, probably a mobile phone, and that he was distracted in the vehicle.
She did however concede that there was nothing to indicate that the accused was sleep deprived from the video which was tendered.[62] At various times in the video she said that she identified slower blinks with only mild fatigue observed including one that she now thinks was a hiccup.[63]
[62] TP 267.
[63] TP 269.
In considering the accused's position at some lights she described slow eyelid closures common in fatigued people where there's a lack of activity while waiting at lights.[64] She said that at about 43.30 on the video there was what she thought was a fatigue related sharp head nod indicating a micro sleep. She did not think that it was simply the accused looking down because of the speed of the head nod. She said that even if it was not a head nod but simply looking down at something it wouldn't change her opinion because of the presence of eyeblinks which would indicate significant fatigue on its own.
[64] TP 270.
She accepted that she did not see any behaviour that looked like he was actually falling asleep but saw distracted driving behaviour including changing the music. She also said that she did not think the accused was suffering a micro sleep at the point of the collision nor was he asleep nor was he having a micro sleep in the proceeding 20 or so seconds.[65]
[65] TP 277.
She was asked about the quality of the video and she said that it did not affect her assessment of the state of fatigue of the accused. When Professor Banks was cross-examined she acknowledged that she did not have the major crash accident reconstruction plans or photographs, details of the accident scene or photographs of the scene.
She had however received a report about mobile phone data downloads in the 20 or so hours before the collision. She had received a report on some of the shifts that the accused had worked but did not have the opportunity to see the accused in person. She did not think it was relevant to her assessment of the video the signs of fatigue that she did not have that opportunity. She did not ask for any medical documentation to see if other tests had been done or whether the accused suffered from sleep apnoea or some other sleep disorder. She had only seen the 10-minute video. She agreed that she did not have the opportunity to use a technique such as infrared or video analysis and that she looked at the video in the same way that any member of the jury could look at a video.
She accepted that prior to the collision the accused was looking to the right of the screen. She agreed that it appeared as if something or someone to his left had caught his attention. She accepted that the footage was not taken for the purpose of recording any fine anatomical details and that if one were to look at the accused's eye movements in a fine way the angle of the camera would need to be more front on in order to gain accurate velocity changes. She said that she was still able to observe quite pronounced eyelid closures and head nod and that she did not need to measure them in such a fine-grained way.[66]
[66] TP 298.
She accepted that the number of frames per second can have an impact upon potential assessments of the speed of movement and enable detection of eyelid movements before they can be seen by a natural observer. She accepted that bright lights at night and glare from the roadway and oncoming traffic will create a different kind of blink. She did not think that the use of air-conditioning could dry out the driver's cabin causing blinking that would be any different to that in a room without the same air-conditioning.
She disagreed with the suggestion that a baseline data of an individual person when they are alert and awake is needed to be able to fairly assess the velocity of eyelid closures.
Evidence Called by The Accused
Professor William Andrew Dawson is currently the director of the Appleton Institute and manages, supervises and participates in research related to fatigue shift work and other areas related to sleep in the general population. He was the founding director of the Centre for Sleep Research in 1991. Professor Banks had been a member of that Centre.
Professor Dawson’s extensive curriculum vitae detailed his expertise. He had been provided with witness statements, work records for the accused and video footage from the in-taxi CCTV. He explained that the major difference between his views and the views expressed by Professor Banks, is whether there is sufficient detail to indicate that the accused was fatigued at the time of the accident or whether in fact the accident itself was fatigue related.
He opined that there was not such sufficient detail. He referred specifically to what he described as the poor quality of the video footage from the in-taxi CCTV. He explained that in addition to that poor quality of the footage, the camera itself was mounted at the top of the window of the taxi. He explained that when experts attempted to assess fatigue in drivers from video footage, the cameras are specifically mounted on the bottom of the window, on top of the dashboard, so as to provide a better view of the eyes of the driver as well as, being able to see more of the distance between a driver's chin and chest when assessing nodding behaviour and muscular control.
He explained that it is also necessary for a wider view to be used so that the expert can distinguish clearly between what may be found to be events of distraction including using a mobile phone or checking screens within the taxi cab and other motions of the head which are unrelated. He explained that it is critical to do so to be able to draw detailed conclusions.[67]
[67] TP 309-311.
He said that the CCTV footage, does show some head movements and drops to the right, consistent, in fact with the accused interacting with screens that are in the taxis including the dispatch screen, rather than a fatigue related head nod. However, it is impossible to determine those matters from the CCTV because the screens and the mobile phone activity cannot be viewed directly on that screen.
He said that in any event there is a need for baseline data about the particular driver which will indicate how he appears when not tired. He said that people vary considerably, including how wide their eyes open when they are alert and how quickly and for how long they drop when they have a micro sleep. He also explained there are marked differences between persons based on race or ethnic background.
To determine these matters through technology there is a need to look at the individual and understand how the individual presents generally to be able to determine whether what is apparent from the screen is different from the behaviour which would be typical for them. This baseline material is also necessary to determine whether the driving at a particular time is common or normal for that driver. Accordingly, he concluded that he did not reach the conclusions reached by Professor Banks in the absence of baseline data particularly as to how the driver presents when he is not tired or fatigued.
He expressed his opinion about the findings generally as to a head nod.[68] He explained that from the use of technology a key factor as to whether someone has suffered from a micro sleep is where the head goes down and then the head is jerked up and there is a startled response.
[68] TP 316.
The common response is to shake the head, and close the eyes several times and a look of shock appears when they realise how dangerous falling asleep is. He opined that where they have not exhibited these movements it is less likely that they have fallen asleep.
He explained that notwithstanding the difficulties with the quality of the CCTV he did not observe this classic fatigue related wake up event after what Professor Banks had indicated as a head nod indicative of a micro sleep.
He opined that when taking into account the camera angle, the quality of the film, and his own observations, it could not be confidently stated that the accused had suffered a micro sleep as opined by Professor Banks.
He turned to the question of what was said to be eye closures by the accused. He explained that those eye closures could be simply downward gazes and interacting with the equipment inside the taxi.
He had undertaken detailed investigations with taxi drivers over many years and was aware that they have, as did this accused, a screen intensive environment and that they interact with those screens and accordingly look down on a regular basis. He referred also to other factors including that one may blink in the early hours of the morning or late at night simply because of circadian rhythms rather than because of fatigue.
He assessed the details of the accused's shift work. He could not see any clear evidence to suggest that the accused should have been fatigued, and, further there was no suggestion that the accused had any medical condition or undiagnosed sleep disorder or why the normal amount of sleep was insufficient to keep him alert.
He did, however, accept that the accused may have been distracted in the lead up to the collision by looking elsewhere and did not have the time to respond to an individual on the road surface.
He noted that there was some inspection by the accused of screens immediately prior to the collision.[69] However from his observations of the video film, the accused appeared to him to be engaged in the task of driving prior to the impact.
[69] TP 325-326.
He deposed that before an accident can be considered to be fatigue related, there must be clear evidence that the individual was fatigued at the time of the accident and that the circumstances of the accident were consistent with a fatigue related error.
This overcomes his concern that sometimes fatigue is a conclusion reached by means of exclusion, that is if there is no other reasonable explanation, then it becomes an assumption of fatigue.
When cross-examined he accepted that if fatigue is found, it then is not a question of reduced vision; “it is not that the drivers can't see, but they may take into account too much information and not eliminate it”.
He repeated that while a micro sleep is a clear indication of fatigue, he disagreed with the suggestion that a head nod may only be explained by fatigue. He repeated that with a fatigue related head nod which involves a classic micro sleep there would be a look of surprise when the driver realises that he had fallen asleep after raising their head up.
There was no such reaction by the accused. He explained that a scientific analysis of eye blink and head nodding behaviour in drivers can typically be established 75-80% of the time.
He explained that there were some signs consistent but also inconsistent with fatigue in the 10-minute period prior to the collision.[70]
[70] TP 331.
He did not accept that there was any evidence of a loss of fine motor control. He did explain again that while a loss of fine motor control of the head is possibly consistent with fatigue it may also be consistent with other explanations such that they could easily reflect other factors. He accepted that the accused was listening to music and any head movements would be equally as consistent with someone engaging in the music as a suggested loss of fine motor control.
Charles Henry Aust is an accident reconstruction engineer.
He was highly qualified to give evidence on various topics involving accident reconstruction. He had prepared a report directed to two specific topics, respectively:
The interpretation of data obtained from the airbag in the taxi, “the first issue” and,
The videos of subsequent drive-through tests on 20 September 2019, and 1 October 2019 with more appropriately placed cameras (“the second issue”).
As to the first issue, there had been different opinions expressed by Mr Aust, on the one hand, and Sergeant Fulcher, on the other, as to whether the accused had applied the brakes prior to the collision with the deceased.
The difficulties in resolving that difference in opinions were caused by potential inaccuracies in the airbag data itself.
As I have already noted, the respective counsel very properly joined in an agreed fact which resulted from those difficulties.[71]
[71] See footnotes 6, and 34 supra.
As to the second issue, counsel for the prosecution submitted that the videos could be of no assistance to me in determining the accused’s vision of the road ahead at the time of the collision.
Mr Aust had conducted a drive-through test with a Volkswagon driven by his father, an eminently qualified accident reconstruction expert, on 20 September 2019. It reflected a drive in rain along the Anzac Highway.
Subsequent tests were conducted at about 9.45 pm at the scene of the collision on 1 October 2019 in the 2010 Skoda Wagon.
I received the evidence de bene esse.
In R v Farquharson [72], the Court of Criminal Appeal in Victoria had considered the admissibility of “drive-through” reconstructions in a murder trial involving a vehicle driving into a dam.
[72] [2009] VSCA 307.
Complaints were made in that case the vehicle used in the reconstruction was of a different type; that the circumstances of the reconstruction were different; and that the witness had failed to satisfy the Makita test.[73] In Makita (Aust) Pty Ltd v Sprowles and in the South Australian case of R v Bjordal [2005] SASC 422, such evidence was excluded because the witness did not have sufficient expertise.
[73] Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305.
The Court of Appeal in Farquharson concluded that the evidence of the reconstruction, in that case by the prosecution, was properly admitted. This was consistent with the decisions in See R v Huang[74] and R v Ireland (No.2),[75]
[74] [2019] SASCFC 38.
[75] (1971) SASR 6.
Mr Aust had set up two cones, the first at the 70-metre point from the approximate area of the collision, and the other at 120 metres.
The Skoda Wagon had been fitted with a dashcam which had been professionally installed. Mr Aust had attempted to keep the vehicle at a steady speed of 60 k/ph. He travelled in the northernmost lane closest to the sidewalk on Anzac Highway.
Mr Aust Senior, was positioned on the median strip. He was then 172 cm tall and weighed about 70 to 74 kilograms. He was wearing dark coloured clothing.
When cross-examined, Mr Aust was unable to detail the focal link of the camera or its aperture, nor what aperture best reflects the human eye.
He was also unable to comment on the glare from passing traffic on the day of the test as contrasted with the circumstances on the night of the collision. He accepted that if there were more cars coming from the opposite direction with headlights on, there would be greater glare. Mr Aust did not conduct an experiment of the headlights in the vehicle at distances other than 30 metres. He agreed that the quantity of the rain at the time of the collision would affect the visibility.
It was agreed between counsel that no opinion evidence as to the accuracy of the equipment would be given Mr Aust.
In my opinion, the evidence of the drive-throughs was plainly admissible and was accordingly admitted into evidence. However, ultimately, the videos were of little or no assistance to me in determining when the driver could have stopped in time.
·Additional agreed fact[76]
[76] TP 71.
This fact was that at 10.48pm to all of its taxi drivers, including the accused, that some 2000 possible fares were available at the Entertainment Centre. This, of course, was just prior to impact. The dispatch notification would have appeared on the module depicted in the photograph Exhibit D6.
Submissions of Counsel
I have taken into account the whole of the submissions made by both counsel. I do not propose to detail each and every submission but will set out a synopsis of the main points made by each of them.
·Counsel for the prosecution
Mr Foundas, counsel for the prosecution, submitted that the Court ought to be satisfied beyond reasonable doubt; indeed, that “it was an irresistible finding that there was a degree of inattentiveness on the part of the accused”. He made that submission on the basis that on any view the accused had not seen the deceased at any point prior to impact.
He submitted that that leaves the question for the Court to determine as being whether that inattention is a minor lapse in concentration which might amount to driving without due care or whether it amounts to gross inattention in all the circumstances and thus would constitute the offence of driving in a manner dangerous to the public. He referred to the reconstruction plan,[77] and the approximate area of impact marked “A” on that plan.
[77] EX P1.
He very properly conceded that there was no suggestion that the accused was speeding. Having regard to the location of the deceased’s body, he submitted that the Court ought to conclude that the area marked “P1A”, in the most northern lane is in fact the area on Anzac Highway where the impact occurred.
He submitted that if the Court were to accept that point, then the area of collision was outside the shaded area which represented shadows from trees and surrounding items.
He submitted that that location was generally supported by the evidence of the witness, Brodie Hunt.
Mr Foundas then dealt with the direction of travel of the deceased on that night.
He invited the Court to conclude that the deceased had moved from the south side of Anzac Highway in a northerly direction towards the bus shelter on the northern side kerb.
As to that point, I repeat that no one had observed the deceased on the southern side kerb.
This was an important matter because if the deceased was not capable of being seen until he left the median strip, the time available to any driver was limited to 4.17 and 7.65 seconds.
Mr Foundas very properly conceded that Anzac Highway had been the subject of rain throughout the night, albeit that it was unclear as to whether it was raining at the specific time of impact. The two witnesses called by the prosecution, Brodie Hunt and JS had deposed that it was raining to some degree. He acknowledged the difference in their recollections. Mr Foundas conceded that the first time that Brodie Hunt was requested to turn his mind to the events of that night, some 20 months after the event.
Mr Foundas addressed the question of the lighting on Anzac Highway. He referred to the evidence of Brevet Sergeant Kingsland who had deposed that despite the road being wet, and it being clearly night time, the approximate point of collision had reasonable artificial street lighting, together with that from the bus shelter. Mr Kingsland had conceded that some of the photographs made the Anzac Highway area darker than in real life and in some respects, made it appear lighter than real life.

In R v Jaeschke,[92] Doyle CJ explained the ascending order of seriousness when considering the manner of driving. Was it not mere inadvertence? Was it such as to constitute driving without due care? or was it such as to be in a manner dangerous to the public?
·Driving without due care
[92] [2007] SASC 321.
There are degrees of bad driving. The offence of driving without due care covers any material departure from the standard of care expected of all motorists.
The law recognises that none of us are perfect, and any one of us may sometimes fail to devote to our driving the care and attention that the law requires, and through that inattention a collision may occur and people may die.
Because none of us are perfect, we have to accept the risk that when we use a public road, whether as a driver, a passenger, or a pedestrian, we will confront someone else who is not driving with due care and attention.
The law recognises this driving as a risk of the kind which is something we just have to accept as one of the ordinary incidents in modern life. People mean well, but sometimes they make mistakes, often due to inattention or material lapses in concentration.
Where however that driving without due care and attention does cause death it becomes the more serious form of that offence under s 45B(2) of the Act namely that of Aggravated driving without due care and attention.
·Causing death by dangerous driving
The prosecution asserts that the accused was not just inattentive but that he was grossly inattentive in that he was fatigued. It also relies on the fact that the accused did not see the deceased at any time.
I repeat that in contrast to the concept of driving without due care and attention, the offence of causing death by driving in a manner dangerous to any person requires some serious breach of the proper conduct of the vehicle on the roadway, so serious as to be in reality and not just, speculatively, a real and appreciable risk to members of the public - a grave departure from the standard of care such that it imposes a risk which any reasonable person in the situation of the accused would recognise as a real danger to the public.
Discussion and findings
I set out in some detail, the evidence given by the witnesses in this trial. I have some concerns about much of that evidence, as I will explain.
·The “eye witnesses”
I turn to my assessment of the evidence of the respective witnesses Brodie Hunt, and “JS” who were called by the prosecution.
I had a number of concerns about the evidence given by Brodie Hunt. I have already detailed the circumstances in which Brodie Hunt had provided a statement to the police some 20 months after the collision.
At that time, the evidence at the jury trial had almost been completed.
There was, at that time, a dearth of evidence as to the state of the weather, and the level of lighting at the time of the collision; whether the deceased had crossed both sides of Anzac Highway; as to whether the deceased was conspicuous to oncoming traffic; what direction and speed had the deceased walked, and in what lane on the northern side did the collision occur. Fortunately, many of those issues were capable of being resolved by inferences drawn from other evidence of an expert nature.
I observed Mr Hunt while he was giving his evidence. I am left in no doubt that he had reconstructed the circumstances of the collision. My impression was that he was anxious, even in examination-in-chief, to detail his account that he had seen the deceased clearly; that the deceased had walked across the northern lanes in a “moderate speed”; that the deceased had walked in a diagonal direction more towards South Road; that it was not raining, and even that he observed the collision to take place in the northernmost lane. He repeated these “observations” in cross-examination, despite the evidence of others that it was raining and there was poor visibility and the undoubted fact that he was driving in a westerly direction with trees on the median strip.
I repeat that in my opinion Mr Hunt has reconstructed the events that occurred that night. I do not accept at all that he observed the deceased walking across the road. Apart from the question of visibility the position of the shrubs and trees on the median strip and the distance his own vehicle would have travelled reinforce, what in my view, is a reconstruction.
While I accept that he did hear the collision, I have come to the conclusion that I should not accept the evidence of his “observations” unless supported by the evidence of others, including inferences which I can draw from other evidence.
As to JS, I do accept his evidence, particularly as to the level of darkness and the fact, as I find, that it was raining at the time.
Both are to be commended for coming to the assistance of the deceased. I have no doubt that it would have been a shock to both of them to observe the aftermath of the collision. Mr Hunt did maintain contact with the deceased’s nephew since the collision.
The expert reconstruction evidence
I accept without hesitation the evidence of the three police officers, Sergeant Fulcher; Brevet Sergeant Kingsland and Brevet Sergeant Guest, as to their observations on the night of the collision. Reconstruction of such collisions is not an exact science, as Sergeant Fulcher explained when expressing his opinion as to the lane in which the collision occurred; the time it would have taken for “the average” 60-year-old to walk from the southern side of Anzac Highway to the approximate point of the collision; and having regard to factors such as “conspicuity” and “perception reaction times”.
In respect of the estimate of time which may have been taken by the deceased to walk from the southern side to the approximate point of the collision, there was no evidence that anyone saw the deceased walk from the southern side. While I do infer that at some stage the deceased did cross from the southern side to the median strip, neither Brodie Hunt nor JS had observed him to do so. Indeed, they did not observe him on that southern side at all. If anyone could have seen him, it would have been them. They were travelling in a westerly direction from South Road towards where the deceased must have crossed those southern three lanes. It was 110 metres from South Road to the approximate point of collision.
If of course the deceased was walking on the southern road surface as they were driving towards him, then for whatever reason they did not see him.
It may be that the deceased had crossed from the southern side kerb to the median strip some time earlier and had waited on that strip for some time.
I do not propose to speculate.
In my opinion, even if the deceased was walking from the southern side kerb to the median strip as the accused approached, he would not have been conspicuous to the accused who was driving in an easterly direction in the northernmost lane.
Accordingly, in my opinion, the only times and distances which are relevant are those when the deceased stepped onto the northern side of the road. I accept that he did move from the median strip to the point of the collision but I am unable to conclude the time that he took, whether he stopped on the road surface or the direction he took.
I do not intend to repeat the factors which Sergeant Fulcher took into account, including the average perception time; the average walking speeds, particularly having regard to the deceased’s blood alcohol level; probable affected walking manner; and the level of conspicuity.
I do accept that the accused was driving in the northernmost lane – the furthest point from where the deceased would have moved from the median strip. I accept that the collision did occur in the northernmost lane, probably close to the line between the middle lane and that northernmost lane; that it was raining and dark but still the vision was “reasonable” having regard to the time of the night; the artificial lighting; and the inclement weather.
I accept JS’s account of the scene being fairly dark. Ultimately, Sergeant Fulcher was not able to estimate a distance from the point of collision when the accused ought to have been able to see the deceased given the uncertainty about the “conspicuity”. In my opinion, the prosecution has excluded as a possibility that the accused may have stepped off the northern side kerb. I also am satisfied that the deceased did not throw himself in front of the accused’s taxi, nor did he “make a dash” from the middle lane. The accused did see the deceased at the point of impact. He did not see him before because he was not looking directly ahead as he drove the taxi towards the bus shelter.
The accused would have been able to see the deceased at some point prior to the collision. I do not accept the distance of 80 metres opined by Sergeant Fulcher if the deceased had been walking at the speed of just over 4 seconds from the median strip to the point of collision. In light of the conspicuity it would have been much closer to the point of impact.
·The expert fatigue evidence
I do not propose to deal at length with the respective evidence of Professors Banks and Dawson on the topic of fatigue.
Plainly, both witnesses were eminently qualified to express opinions as to whether the accused was fatigued from the in-taxi CCTV video. Both gave evidence as to whether the accused had various head movements consistent with a head nod, and fatigue, amongst other matters.
I accept the evidence of Professor Dawson, rather than that of Professor Banks as to the limitations of the CCTV both from the camera’s position in the taxi and the quality of the video. Most significantly, I accept his evidence of the need for baseline data about a driver and how he would present when not tired.
Having accepted Professor Dawson’s evidence on the topic of fatigue I simply record that I am not satisfied that the accused did engage in a head nod as opined by Professor Banks. I am also not satisfied that the accused was otherwise fatigued. I do accept however, that at a time close to the collision the accused’s attention was drawn from the road to the left of the lane, and also to the dispatch monitor and other devices in the taxi. On no basis could those events constitute gross inattention. I am not satisfied beyond reasonable doubt that the accused was fatigued or grossly distracted.
Critical findings
In light of my assessment of the evidence of Brodie Hunt, the case against the accused is essentially a circumstantial one.
I am, however, satisfied that the accused did not see the deceased until the point of impact. I repeat that I am not satisfied that the accused was fatigued or grossly distracted.
The accused was driving his taxi in the northernmost lane. I infer that he had driven in that lane continuously for some time. He received a dispatch advising him of the available fares at the Entertainment Centre. If that was the only distraction then it would have been an isolated matter not beyond mere inadvertence. I accept the opinion of Professor Banks and Dawson that there were other distractions both from devices in the taxi and on the left side of the taxi. He may well have been distracted by the bus shelter approaching on his left. He may have been distracted by the approaching major intersection with South Road about 110 metres ahead, where pedestrians would have been likely.
It would have appeared to him that there were no pedestrians in the area and no vehicles either. He had previously been looking to his right side. I accept that as he approached the point of collision, he did not look back to the right.
While there may have been some impediment in looking back to the right because of the “A” Pillar and the devices in the taxi, those impediments would not have prevented him seeing the deceased before the impact.
He was driving at approximately 58 k/ph. The weather was at the time, raining. Apart from occasional distractions his driving was entirely appropriate.
The inevitable inference is that he did not expect someone to walk across from south to north at that time. That of course overlooks the possibility that a pedestrian may be seeking refuge from the rain in the bus shelter, or to wait for a bus.
As to the deceased, I have no doubt that he did use his mobile phone before the collision. It is impossible to infer whether the deceased stopped still, to make the mobile call or whether he continued moving. This matter is also relevant to the question of conspicuity.
I do not accept that the conduct of the deceased in either standing still or in crossing the road constitutes an intervening cause or has the effect that the accused’s driving ceased to be a substantial cause.
Save for the conclusion that the accused would have seen the deceased prior to impact, I cannot be satisfied as to the distance from the point of collision that the accused should or could have seen the deceased because of the conspicuity and perception response factors as well as the accuracy of the walking times deposed to by Sergeant Fulcher.
The accused did not change lanes. He had his lights illuminated, and this would have shown the deceased shortly before impact had he not been distracted during the last few seconds. This was a lapse of defensive driving as I have explained.
Conclusion on the charged offence
I repeat my findings that the accused was not fatigued nor was grossly inattentive.
In my opinion, the prosecution case falls well short of proof beyond reasonable doubt. It cannot be said, given the whole of the evidence that the driving of the accused was such a grave departure from the standard of care expected of road users that it imposed a risk that a reasonable person in the position of the accused would recognise as a real danger to the public.
Conclusion
Accordingly, I am not satisfied beyond reasonable doubt that the accused is guilty of the charged offence of causing death by dangerous driving, and I find him not guilty of the charged offence.
·The alternative statutory charge
I turn now to the statutory alternative of aggravated driving without due care and attention.
I do not propose to refer again to all of the submissions of both counsel.
The fact that a person did die in the collision is not enough to prove the statutory alternative. The latter consequence may occur without even a lack of due care and attention.
The accused drove in a straight line in the northernmost lane. He did not see the deceased until the collision occurred. He did not swing to the right or attempt to slow down.
I am satisfied beyond reasonable doubt that as he drove towards the point of impact, the accused lost concentration by looking to the left; by looking at his dispatch monitor on which the message to go to the Entertainment Centre had just been sent; and when he appeared to change music on a device as noted by Professor Banks. I do not propose to repeat the other distractions noted by Professor Dawson.
These distractions prevented him from seeing the deceased until the point of impact. This is not a case where the deceased could not be seen. It is not a case where the deceased threw himself onto the accused’s taxi. The accused plainly did not see him until impact. That much is plain from his reaction on film.
While the bus shelter would have been a distraction, it ought to have been a sign that pedestrians may be close by and enhanced the need for defensive driving.
Mr Anders referred to the respective cases of Police v Melisi,[93] and Brooks v Police.[94] In the former case a person was crossing a dual lane road at an unmarked pedestrian area, and stepped into the path of the accused’s vehicle. The Court did not interfere with the decision of the Magistrate who concluded that it was not driving without due care.
[93] [2010] SASC 21.
[94] [2013] SASC 81.
It is plain that the test does not require the driver to be a “perfect” driver. It requires more than mere inadvertence or negligence.
In Brooks, the accused’s motorcycle had run off the road and collided with a fence and tree. The Court on appeal held that while a want of due care was a rational inference, it was not the only inference on the evidence, and the Court could not be satisfied of guilt beyond reasonable doubt. I repeat my opinion that other inferences consistent with innocence have been excluded.
I repeat that in Bliss v R,[95] Mullighan J summarised the law as to due care saying:
However the law has long recognised the difference between mere inadvertence or negligence which is an ordinary risk of using the road, and conduct which is plainly blameworthy.
By empowering the jury to acquit of causing death by dangerous driving and to convict of driving without due care or attention, Parliament must have contemplated that not all departures from due care and attention, even if they cause death, are necessarily to be classified as dangerous. The mere fact that the driver should have been more vigilant did not, on those facts, establish that the driving went beyond inadvertence, and did not constitute driving without due care.
[95] 173 LSJS 255.
The question is to be determined objectively. The obligation is to drive with due care, namely to exercise the standard of care which one would expect of a reasonably prudent driver in the position of the accused.
In my opinion, the reasonably prudent driver is expected to drive with a defensive lookout – that is “a lookout that not only sees immediate or immediately developing danger, but looks ahead and searches for potential danger”.
In my opinion, the accused ought to have been aware that pedestrians may cross the road at points away from a pedestrian crossing. While it transpired that there were no pedestrians on the northern side, nor in the bus shelter, it ought to have been plain to the accused that the shelter may attract those from both sides of the Highway who may wish to travel to the city by bus or at least to obtain shelter from the rain. There was a need to constantly look back to both sides of the lane in which the accused was driving. I repeat that this is not a case where the accused could not have seen the deceased. He could have been seen, albeit closer to the point of collision, and notwithstanding his dark clothing and indeed the irresponsible decision to cross the road in his alcoholic state.
I am satisfied beyond reasonable doubt that the accused was distracted while driving in the northernmost lane to the left side kerb and that it was more than mere inadvertence.
It is not a question of determining whether the accused could have avoided the collision. The question is whether the accused drove with the standard of care which one would have expected of a reasonably prudent driver in his position. I accept that he did not expect anyone to cross the road at that point, but he ceased to look ahead until the point of the collision. The deceased clearly should not have been on the road surface at the time. That does not relieve the accused of his obligation to drive defensively.
I readily accept that reasonable minds will differ as to the nature of the accused’s driving.[96] It is a question of degree and in this case timing, whether the accused’s distractions are more than mere inadvertence.
[96] See R v Jaeschke [2007] SASC 321.
The admission by the accused that he had not seen the deceased before impact itself establishes an inadequate lookout at that time, beyond mere inadvertence even allowing for the weather conditions, the level of artificial illumination; the dark clothing of the deceased; his alcohol level and the use of the mobile phone.
·Conclusion
I am satisfied beyond reasonable doubt that the accused is guilty of the aggravated form of the statutory alternative of driving without due care and attention – the offence is aggravated because of the death of the deceased in the collision.
Verdicts
I find the accused not guilty of the charged offence. However, pursuant to s 19B(3) of the Act, I find the accused guilty of aggravated driving without due care and attention contrary to s 45 of the Road Traffic Act 1961.

I enter verdicts accordingly.