R v Spooner - [2010] SADC 73

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SPOONER
Criminal Trial by Judge Alone
[2010] SADC 73
Reasons for the Verdict of His Honour Judge Soulio
24 May 2010
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - PROOF AND EVIDENCE
Accused charged with one count of causing death by dangerous driving.
Trial by Judge sitting without a jury.
Elements of offence. Whether driving amounted to dangerous driving or driving without due care.
Verdict: Not Guilty.
Criminal Law Consolidation Act, 1935 s19A(1), s19B(3); Juries Act 1927 s7; Road Traffic Act 1961 s45, referred to.
McBride v The Queen (1966) 115 CLR 44; Jiminez v The Queen (1992) 173 CLR 572; R v Mayne (1975) 11 SASR 583; R v Collie (2005) 91 SASR 339; Spence v Demasi (1988) 48 SASR 536; R v Hajistassi [2010] SASC 111, considered.

R v SPOONER
[2010] SADC 73
Introduction

The accused is charged with the offence of causing death by dangerous driving contrary to s19A(1) of the Criminal Law Consolidation Act 1935 (the Act), which provides:
A person who—
(a)drives a motor vehicle in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to the public; and
(b)by that culpable negligence, recklessness or other conduct, causes the death of another, is guilty of an indictable offence.
The particulars of the offence alleged are:
Neil Spooner on the first day of June 2006 at Unley, drove a motor vehicle at a speed or in a manner dangerous to the public and thereby caused the death of Daniel Raphael.
The accused pleaded not guilty to the charge and elected to be tried by a judge sitting without a jury, pursuant to s7 of the Juries Act 1927.
Background
It is common ground that at about 5.40pm on 1 June 2006, the accused who had suffered the complete loss of vision in his left eye, and had a restricted field of vision in his right eye, but was licensed to drive, including as a delivery van driver, was driving north along Unley Road Unley towards the city.
Mr Raphael was the rider of a small motor scooter, also facing north on Unley Road, stationary, and waiting for a break in heavy south bound traffic, to turn right into Maud Street.
The van struck the rear of the scooter, causing injuries to Mr Raphael which ultimately resulted in his death.
Principles
I bear in mind that the accused is presumed to be innocent of the charge unless and until the prosecution has proved each and every element of the offence. The accused carries no onus in any respect. I bear in mind that a finding that the accused is possibly guilty, or probably guilty, would be insufficient to prove the charge against him.
When making reference to being satisfied, or a matter being proved, that shall be a reference to a matter being proved beyond reasonable doubt.
I have adopted the principles which would normally be contained within the directions to a jury as to the proper approach in assessing witnesses, assessing credibility and reliability, and the drawing of inferences.
The accused did not give evidence at trial. That is his legal right and I draw no adverse inference against him for adopting that course. The prosecution, as I have said, has the onus of proving its case beyond reasonable doubt and the accused bears no onus whatsoever.
Elements of the Offence
The three elements of the offence which must be proved beyond reasonable doubt by the prosecution are: that the accused was the driver of the motor vehicle; that the motor vehicle was being driven in a manner dangerous to the public; and that by driving in that manner the accused caused the death of the deceased.
As I have said, it is common ground that the accused was the driver of a delivery van which collided with the rear of Mr Raphael’s motor scooter. It is also common ground that the collision caused the death of Mr Raphael.
The issue is whether the accused was driving the motor vehicle at a speed or in a manner which was dangerous to the public.
As Barwick CJ observed in McBride v The Queen:
The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. [1]
[1] McBride v The Queen (1966) 115 CLR 44 at 49-50.
That passage was cited with approval by the High Court in Jiminez v The Queen:
The manner of driving encompasses "all matters connected with the management and control of a car by a driver when it is being driven" (R v Coventry (1938) 59 CLR 633 at 639). For the driving to be dangerous for the purposes of s 52A there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention. Although a course of conduct is involved it need not take place over any considerable period.[2]
[2] Jiminez v The Queen (1992) 173 CLR 572 at 579.
And by Bray CJ in R v Mayne:
Thus it is customary to distinguish between such departures from the proper standard of care as may be regarded as ordinary risks of the road, even if they would found a civil action, and such a manner of driving exposing other road users to such a risk as "any reasonable person in the situation of the driver ought to recognize as a real danger to the public" (Duncan's case).[3]
[3] R v Mayne (1975) 11 SASR 583 at 585.
Accordingly, in order to prove the second element, the prosecution must prove that the speed or manner of driving was such a grave departure from the standard of care expected of a road user that it imposed a risk which any person in the position of the accused would recognise as a real danger to the public.
I bear in mind that the risk is one which is in no sense an ordinary or necessary risk of the road, and the driving refers to a manner of driving which is treated as a serious crime.
Alternative Charge
Pursuant to s19B(3) of the Act, in the event that I find the accused not guilty of the offence charged, I may bring in a verdict of guilty to an alternative, less serious offence, of driving without due care, contrary to s45 of the Road Traffic Act 1961.
Driving without due care is a departure from the standard of care which would be expected of a reasonable driver in the position of the accused, but which is not so serious as to constitute the offence of driving in a manner which is dangerous to the public.
In R v Mayne Bray CJ observed:
Moreover it is also customary and usual, and probably, in view of the provisions of s 14a, obligatory, to tell the jury of their power to convict of a lesser offence under that section and to invite them to consider in an ascending order of seriousness whether the manner of driving they find against the accused was not negligent at all or was such as to show merely that he was driving without due care or attention or such as to be dangerous to the public.[4]
[4] Ibid.
The Prosecution Case
The prosecution based its allegation that the accused was driving dangerously on three factors: that the accused was driving at too high a speed in the conditions; that his driving manoeuvre in changing lanes was in itself dangerous; and that he failed to keep a proper look out.
The prevailing conditions to be considered, in assessing whether the accused was driving at too high a speed, were: that it was dark; that traffic, particularly south bound traffic moving away from the city, was heavy; that there were some vehicles parked on the kerb side lane for north bound traffic restricting the free flow of traffic; that it had been raining and the road was wet; that there was some intermittent drizzle still occurring; and that the accused had no vision in his left eye and restricted vision in his right eye, which the prosecution said, meant that the accused had to drive with sufficient care to compensate for his disability.
Nevertheless, counsel for the prosecution said of the accused’s reduced vision:
Simply put we say it plays a part in the sense that it goes to the general dangerousness of the manoeuvre, but in fact it doesn’t explain why he failed to see Daniel Raphael, because Daniel would have been within his field of vision.
The prosecution asserted that there was another vehicle waiting to turn from Unley Road into Marion Street some 65 metres south of Maud Street. Accordingly the accused would have had to have driven past that stationary vehicle before moving into the right lane of Unley Road approaching the junction with Maud Street.
The prosecution case was put on the basis that the accused drove past the vehicle waiting to turn right into Maud Street, then accelerated back into the right lane. On the prosecution case the accused did not slow, brake, or swerve before the collision.
There is no suggestion that the accused had consumed alcohol or drugs prior to driving.
Prosecution Witnesses
The prosecution called Ms Robyn King and her husband Mr John Walker, who were the driver and passenger in a car travelling south along Unley Road, Ms Charmain Petralas, also the driver of a car travelling south along Unley Road, Constable Bashford who spoke to the accused at the scene, Constable Huxholl who made observations at the scene, Sergeant Hancock, who interviewed the accused, prepared a detailed plan, and gave some expert evidence, Constable Smith who prepared a video re-enactment showing a motor scooter at night on Unley Road, Sergeant Spence a police road accident expert, Ms McMahon, the deceased’s aunt who collected clothing from the Royal Adelaide Hospital, and Professor Dain an expert optometrist.
In addition a number of documents were tendered and a number of facts were agreed to which I will refer as necessary.
The only witness called by the defence was Mr Hall, a road accident reconstruction expert.
Evidence and Findings
General Conditions
The collision occurred at about 5.40pm on 1 June 2006. Sunset that evening was at 5.12pm.[5] The sky was dark and overcast. It had been raining earlier in the evening and the road was wet.
[5] Proof of Sunrise and Sunset Act 1923.
Unley Road has two lanes in each direction. The kerb side south bound lane is a clearway between 4pm and 6pm. Cars are able to be parked on the kerb side north bound lane during that period.
South bound traffic on Unley Road was moving reasonably freely at speeds of about 40 kilometres per hour in the section immediately after Greenhill Road, but as traffic approached the section of Unley Road leading to the Maud Street intersection, both lanes were heavily congested, travelling bumper to bumper and in a stop-start fashion. Traffic travelling north bound into the city was moving more freely. All cars had head lights on. There was slight drizzle at around the time of the collision.
The Location and Visibility of Mr Raphael
Mr Walker described the area where the motor scooter was stationary as being a very dark area. The motor scooter was brought to his attention by his wife, when their car was only a couple of lengths north of Maud Street. Their car was barely moving at the time. He described the motor scooter as a very small moped. He said he “could see someone standing basically it looked like in the middle of the road there. It wasn’t until the traffic moved on that we were actually brought up to that corner and then okay you noticed there was a small moped there.” He said he could not see the rider clearly, he could just see an outline of him because of the lights coming from the other direction.
Ms King said that when she first saw the motor scooter she said to her husband “they are so small in these conditions I think they are really game driving them.” She also described the motor scooter as “a very small scooter” and said that she could see the scooter head light, but because of the bright head-lights of the cars coming towards her in the north bound kerb side lane, the rider looked dark. She said the scooter was positioned quite close to the centre line to turn into Maud Street.
Ms Petralas came to a stop about two car lengths north of Maud Street. She said “as I was sitting there just looking around something caught my eye and made me look to the centre of the road and that’s when I noticed the scooter rider.” She said he was wearing a grey top with a black helmet and was basically on the centre line. She was asked in examination-in-chief “did you have any concerns at that point” and answered “I did. I looked at him and wondered why he didn’t have any protective fluorescent clothing on.” In cross-examination she agreed that Mr Raphael was difficult to see. She said “Once I saw him, I saw him obviously. I could see him, but, you know, upon first noticing him I thought, oh my God you can hardly see him.”
I bear in mind that the three witnesses saw the motor scooter from the front, and that the accused’s view was of the rear of the scooter.
Over objection from counsel for the defence I admitted into evidence a video prepared by Constable Smith, showing a scooter of similar size to that ridden by Mr Raphael, situated on Unley Road with its rear lights and indicator activated, filmed from behind against a background of passing traffic with head lights on. The camera was stationary. I am only able to give only limited weight to that evidence. There was no expert evidence as to whether a video depiction of visibility at night correlates to what the human eye might perceive in the circumstances. The roadway had been artificially watered and there was no drizzle. The video re-enactment does not cause me to make any finding which would differ from the finding I make on the basis of the evidence of witnesses, including Mr Hall.
Mr Raphael was sitting on his small motor scooter, stationary, facing north in the centre lane for north bound traffic, and situated close to the centre line of Unley Road. He was wearing a fawn coloured, but non-reflective, jacket.[6] It is apparent that, to use a very general expression, Mr Raphael was difficult to see.
[6] Evidence of Ms McMahon who attended at the hospital to collect his clothing.
The Approach of the Van (manoeuvre and speed)
Mr Walker said that there was a vehicle at Marion Street, (which is 65 metres south of Maud Street), facing north on Unley Road, stationary, waiting to turn right into Marion Street.
He said his first view of the van was “a glimpse of the light changing from being on the outer side where every other car was (kerb side north bound lane) just seeing it flash through so you see the lights change direction.” He estimated that when he first saw the van it was 40 to 50 metres away from Maud Street. In evidence-in-chief he estimated the speed of the van at 60 kilometres per hour or even a little bit faster but in cross-examination accepted that he might be wrong about the speed and said “very much so, I could be wrong about it. As I say I don’t have the tools and the implements to measure speed but it just appeared to me to be coming down the road very quickly.”
Ms King said that she initially saw the van in the left lane but then it moved into the right lane for north bound traffic. She said that she saw the van “veer to the right lane and accelerate” and when asked what she meant by “veering” she said “swapping lanes like changing from one lane to the next lane, like it was overtaking.” She described the van as travelling at at least 60 kilometres per hour if not more, and said it was accelerating because she could hear the motor. She said the van appeared to be going faster than other traffic heading in the same direction in the left lane.
When cross-examined about the lane change she said that that was a standard move from the left lane to the right lane. She agreed that there was nothing outrageous about the movement and agreed that the manoeuvre was that of a vehicle in control moving from one lane to another.
Ms Petralas, who impressed me as a careful and accurate witness, said that she came to a stop about two car lengths before, that is north of, Maud Street. She first noticed the van as it was about three quarters of the way into the centre lane for north bound traffic. She said that as she was watching the approach of the van she yelled out, in effect to herself, “oh my God he can’t see you” and anticipated the collision. When she first saw the van it was about 25 metres from the point of impact, slightly less than halfway between Marion Street and Maud Street and still in the process of moving from the left lane to the right lane. In cross-examination she also agreed that the lane change was an ordinary change from left to right. There was nothing about the management of the vehicle, apart from the fact that it was heading towards the motor scooter, that drew her attention to the driving of the van. There was nothing erratic about the driving of the van.
It is notoriously difficult for a lay person, even an experienced driver, to accurately estimate the speed of a vehicle, particularly an oncoming vehicle. Clearly one may gauge whether a vehicle is travelling faster than surrounding traffic, and may have some sense that a vehicle is travelling at a speed in excess of the speed limit, partly based on surrounding information. Given that the prosecution witnesses were stationary, and observing the oncoming approach of the van for a short period, it is difficult to place too much reliance upon their estimates as to speed. In saying that, I am in no way critical of their observation, or of their evidence.
As I have said, the prosecution called evidence from police officers as to observations at the scene, and expert evidence, as to the speed of the van at impact.
An important starting point in determining whether the approach speed can be equated to the speed at impact, is the question of whether there was any reduction in speed, by braking, prior to impact.
Did the Accused Brake Prior to Impact?
My finding in this regard is complicated by the evidence of Mr Huxholl who said that he observed two tyre marks, which he marked on a hand drawn plan, commencing prior to the point of impact. Sergeant Hancock drew a more detailed plan to scale showing a single tyre mark commencing prior to impact and continuing through the point of impact. Photographic evidence of that mark however shows that it commences just over four metres prior to the point of impact, but ceases prior to the point of impact.
Sergeant Hancock said in evidence that the tyre mark was not caused by the motor scooter, and said in cross-examination that it was caused by the van. He was re-examined and said that the answer given in cross-examination was given in a state of confusion for various reasons, and having reconsidered the matter he did not consider that the mark was left by the van.
Whatever the reasoning by which Sergeant Hancock arrived at his final position, it accorded with that of the accused’s expert witness, Mr Hall, who said that while it was possible the mark was left as a result of braking by the accused, he did not consider that likely.
Mr Walker said that there was no braking or sound of skidding. Ms King, whose car was situated south of the point of impact, so that the point of impact was behind her, said that she heard, in order, a thud, then scraping sounds, and then the sound of brakes. Ms Petralas said that she believed the van driver could not see the motor scooter because the van driver did not swerve and did not appear to brake. In cross-examination Ms Petralas said that she did not think the driver of the van had applied his brakes at all until impact. She said that she had noticed he had not swerved or braked and it was as though he had collided and then braked.

In his interview with Sergeant Hancock the accused said “… when I turned back, the tail light was just there right in front of my vehicle and as I looked up I just didn’t have time to hit the brake or put my foot on the brake even. The collision happened and then I was able to touch the brake for the first time in that instance.” I shall return to discuss the evidentiary effect of the accused’s statements to police.
I am satisfied on a combination of the expert opinion, and the lay evidence, that the accused did not brake prior to impact, and that the mark on the road was not left by the accused’s van.
Accordingly, the impact speed can be equated with the approach speed.
What was the Impact Speed?
Sergeant Spence assessed the maximum speed of the van as between 54 and 59 kilometres per hour by assuming that the van was under full braking from the point of impact to where it came to rest, a distance of 23 metres. In performing his calculations he used a friction value of .5 to .6 allowing for the wet road, and the fact that the van was fitted with light truck tyres.
Whilst there was not great disagreement between Mr Spence and Mr Hall’s evidence, where the evidence is in conflict I prefer the evidence of Mr Hall having regard to his qualifications as an engineer, and his lengthy and detailed experience in road accident reconstruction.
Mr Hall said the difficulty in calculating the impact speed by reference to the distance the van travelled from the approximate point of impact, and using the assumption that the van was under full braking for that entire period, is that it is not known when the first application of brakes occurred.
Mr Spence conceded as much. Indeed the evidence, once I discount the reasonable possibility that the tyre mark was left by the van, is to the effect that Mr Spooner did not see the motor scooter until immediately prior to impact, and then had to react and apply the brakes, which must have taken place at some point appreciably after impact. On that basis Mr Spence’s calculation of speed, which he conceded was the maximum speed, must overstate the likely impact speed.
Mr Hall calculated the impact speed by reference to what he said was, and what I accept is, a more reliable piece of evidence, namely the distance the motor scooter travelled after impact. The scooter travelled a distance of 16 metres. Mr Hall said that in a rear impact collision a motor cycle, or a motor scooter, would not remain upright for any appreciable distance. He said in any event the coefficient of friction used in his calculations was the same whether the scooter was on its side, or upright. Despite Mr Norman’s assiduous cross-examination on factors which might affect the calculation, Mr Hall concluded that the coefficient of friction remained constant.
In re-examination in response to a challenge as to the basis of his opinion Mr Hall produced research articles which set out findings consistent with the assumptions upon which he had based his calculations.
The only variable which may have made some difference to the relative mass of the two vehicles, a factor which is taken into account in the calculations, was whether the rider became separated from the motor scooter. Mr Hall said that his experience and research showed that in such a collision the rider would very quickly separate from the scooter. That is consistent with the observations of Ms Petralas in relation to the present collision
Using the distance the scooter travelled, Mr Hall calculated that the scooter would have been projected forward at about 40 to 45 kilometres per hour. Given the difference in mass between the van and the scooter that meant that there was likely to be an 8-10% reduction in the speed of the van as it struck the scooter. Put in round figures that means that the impact speed was between 45 and 50 kilometres per hour.
Mr Hall cross checked that calculation using the distance travelled by the van post impact making the assumption of heavy breaking up until the time the van stopped. He applied a friction value which he said was appropriate to a wet road and a van with light truck tyres of .4 to .5, and concluded that using that test the speed at impact was 48 to 54 kilometres per hour. He said “the scooter test is more accurate because we have a finite starting point and a finite finishing point and we know how the scooter came to rest.”
Counsel for the prosecution strongly contended that there was no braking prior to impact. I find that there was none. That means that the impact speed was the same as the approach speed. On all of the evidence, including Mr Spooner’s statement to police about the speed at which he was travelling, and the observations of the witnesses, I conclude that the accused’s approach speed was no more than 50 kilometres per hour.
Lookout
The Effect of the Accused’s Reduced Visual Ability
Professor Dain was an expert optometrist. I received his evidence over objection from defence counsel. He said that in South Australia there is a mandatory requirement for health professionals to notify the relevant authority if they believe their patients are not fit to drive. In the present case there is no suggestion that any medical practitioner notified the authorities that the accused was not fit to drive. Indeed his visual acuity was within, even if barely within, the requirements to enable him to be licensed to drive. He was at the minimum legal requirement for South Australia.
Professor Dain said that the loss of the left eye results in a loss of stereopsis, that is the ability to detect depth. However he said whilst in normal life that has a significant effect, when involved in close activity such as picking things up, or pouring into a container; in driving, given the distances involved, stereopsis is very rarely used.
Professor Dain said a driver with a missing left eye but a healthy right eye driving on the left hand side of the road needs to do more to check the blind spot, to check whether it is safe to move to the left. With both the loss of a left eye and a right eye with reduced visual field to 90 degrees, a driver needs to make more of an effort to cover the loss of field of the left eye. Night time driving tends to enhance any losses that relate to loss of visual acuity.
He said that in response to generalised visual losses drivers tend to drive more slowly, drive short distances and stay within familiar streets.
However, he said that in the circumstances of the present case, the motor scooter would not be out of the visual field of a monocular driver with reduced visual field in the right eye, as the driver moved into the right lane. It would only be outside the driver’s visual field when he was very close to the scooter. As the driver was approaching the situation the scooter would be well within the visual field.
In cross-examination Professor Dain agreed that within the field of vision of 90 degrees, a monocular person could see just as well as a binocular person. Vision with one eye in terms of visual acuity is essentially the same as vision with two eyes. The advantage of two eyes in visual acuity is very very small. A monocular person is in just as good a position as a binocular person to see what is happening ahead of them.
He agreed that the ability to drive safely as a monocular person increases with experience for a period; that is, people adapt to compensate for the loss of an eye, developing strategies of head movement and eye movement. A monocular person would not turn their head any more than a binocular person when checking a passenger side rear view mirror, or a rear view mirror.
Professor Dain agreed that if a person is permitted, having regard to their visual ability, to hold a driver's licence, then it is accepted that they are able to perform the range of manoeuvres required to navigate a vehicle around town. Changing to the inside lane at peak hour might require extra care, although in the present case the lane change is of course to the outside lane.
The Effect of Glare From Oncoming Traffic
Counsel for the prosecution contended that it was not open to me to find that the head lights of oncoming vehicles, or any other factor, had affected the ability of the accused to see Mr Raphael’s motor scooter, given that the accused did not give evidence.
As I have said, that was his legal right and I draw no adverse inference against him for adopting that course. The accused did make statements to police. The issue remains as to the weight to be attached to those statements as evidence in the case.
In R v Collie Vanstone J, in considering the issue as to whether exculpatory statements were to be regarded only as material upon which a defence could be based, or whether they were to be regarded as evidence, said:
I note in passing that the attribution of any evidentiary status to out-of-court statements made by a defendant as part of a "mixed statement" containing both admissions and exculpatory statements has never been free from controversy. In England a debate about the admissibility and use of the exculpatory parts of such statements raged over many decades. The matter seemed to have been settled in R v Duncan (1981) 73 Cr App R 359, where Lord Lane CJ, speaking for the Court of Appeal, took the pragmatic view that the whole of such statements should be admitted and have evidentiary status (at least partly because it was too difficult, and unhelpful, to attempt to explain that the exculpatory parts were something less than evidence of those assertions), but that the jury could be alerted to the differing weight of such statements. However, a line of subsequent cases favoured what came to be called the "purist view": R v Sparrow [1973] 1 WLR 488; R v Pearce (1979) 69 Cr App R 365; Leung Kam-Kwok v The Queen (1984) 81 Cr App R 83 (PC). Then in R v Sharp [1988] 1 WLR 7 the House of Lords reviewed the question and approved of the position as established in Duncan. Yet again, in 1995 the House of Lords was asked to review the matter on the ground that the law was said to be unduly favourable to defendants who did not testify. The decision in Duncan was again approved: R v Aziz [1996] 1 AC 41. Reference was again made to the varying weight that might be attached to the different parts of such a mixed statement. In South Australia the authority of the decisions in Duncan and Sharp was accepted in the judgment of Cox J, speaking for the Full Court, in Spence v Demasi (1988) 48 SASR 536. That line of decisions would also seem to be not inconsistent with Peacock v The King (1911) 13 CLR 619, in which the High Court discussed the appropriate direction to be given to juries as to their assessment of an unsworn statement made from the dock. Griffiths CJ held (at 640-641) that the jury should be instructed to take the statement as "prima facie a possible version of the facts and consider it with the sworn evidence". Barton J (at 646) found that it "must be conceded to have some evidentiary status". O'Connor J agreed with both of those views. Certainly statements outside court not on oath could not have any status greater than that of an unsworn statement from the dock.[7]
[7] R v Collie (2005) 91 SASR 339.
In R v Hajistassi[8] the Court cited with approval its own decision in Spence v Demasi where the Court said:
It is common for the Crown to tender a record of the accused's interrogation by the police, and often this will contain a mixture of admissions and self-serving statements. The Crown cannot pick and choose. It cannot put in only the damaging questions and answers, or have the admissions treated as evidence and the rest rejected or ignored as hearsay. The whole interrogation (or narrative statement, as the case may be) goes before the jury and it is for them to decide what parts, if any, they will act upon in reaching their verdict. They may give different weight to different parts: see R v Higgins (1829) 3 C & P 603; 172 ER 565. The failure of the accused to give evidence may well influence their attitude to the self-serving answers.[9]
[8] R v Hajistassi Unreported judgment of the Court of Criminal Appeal delivered 27 April 2010 [2010] SASC 111.
[9] Spence v Demasi (1988) 48 SASR 536 at p 540.
And:
Despite the fact that the defendant could not himself ordinarily tender a self-serving statement in proof of the matters so stated, such a statement, when tendered by the Crown because of the admissions that accompany it, will be evidence for all purposes, whatever the weight of its individual parts might be. That, I believe, reflects the current practice in the courts of this State.[10]
[10] Ibid at p 541.
While waiting at the scene Constable Bashford’s video camera was operating. There was no formal interview. The accused volunteered the following:
Yeah I was coming into town. Traffic in both lanes coming out of town. Very busy heavy traffic. He just got caught up I guess cos I didn’t see him til the last minute. I presume he was waiting to turn right into (inaudible) and I was going to change lanes to the left from the middle lane cos there was another vehicle further up turning right and he just got caught in the head lights from the cars coming up. Between the head lights and the shadows and the reflections off the road and everything. …
I observe that the weight of evidence is that in fact the accused changed lanes from the left lane to the middle lane.
The accused was formally interviewed by Senior Constable Hancock on 22 August 2006, about one and a half months after the collision. Within two days after the collision the accused had prepared notes of his recollection of the circumstances. He read from those notes during the interview and said:
… the road was wet due to the recent rain fall and it was after dark. Traffic travelling south along Unley Road was extremely heavy and was almost at a stand still and as it was after dark the vehicle, vehicles heading in the opposite direction had their head lights turned on. several vehicles had maladjusted head lights that were very glary appearing to be adjusted upwards. As I approached the intersection of Maud Street and Unley Road I noticed a vehicle or vehicles ahead waiting to turn right at what I thought, then further ahead was Young Street because there’s a pedestrian crossing there I could see, seemed pretty close to the pedestrian crossing waiting to turn right and as the traffic was very heavy I decided to change lanes from the centre lane to the kerb side lane to avoid those vehicles ahead when I you know so that I could just continue on.
I checked the road ahead and then checked the rear view mirrors both central and left hand side to ascertain if the left hand lane was clear for me to move into and upon returning attention immediately to the front of my vehicle I instantly saw a motor cycle which has now turned out to be a motor scooter and was unable to avoid colliding with the rear end of the machine.
As I saw the thing it was just the tail light when I turned back the tail light was just there right in the front of my vehicle and as I looked up I just didn’t have time to hit the brake or put my foot on the brake even. The collision happened and then I was able to touch the brake for the first time in that instance. I don’t know whether the vehicle, the motor scooter, was waiting to turn right or had come from Maud Street into my path I don’t know the answer to that because as I said I didn’t see it til I was right on top of it, had no idea what had happened.
My belief was that the rider was lost in the back drop of the motor vehicle head lights coming in the opposite direction. … I didn’t see it for that reason I am sure and the tail light on the vehicle, on the motor scooter, was not visible in the, as I said with head lights coming a lot off a lot of the road was wet there was reflections and there was traffic and just wasn’t seen so unfortunately I hit the motor cycle from, from the rear one way or the other. … Unfortunately the motor scooter blending into the back drop that’s all I can say, what happened from my side of it.
The accused repeated the statement that he had been travelling in the centre lane because of parked cars in the left lane, and went to change lanes and the collision occurred.
Whilst I do not accept that as an accurate account of which lane the accused had been travelling in, I do not regard the error in a sinister way. Rather it is simply an incorrect recollection. I prefer the evidence of the prosecution witnesses that the accused was travelling in the left lane and moved into the centre lane. The account given by the accused to police that he was travelling in the centre lane the whole time, which I do not accept given the evidence to the contrary, must have been a mistake. It was not to the accused’s advantage to say that if he had in fact been travelling in the centre lane without any traffic in front of him, as he would have had a greater opportunity to see Mr Raphael’s scooter in such circumstances.
The accused conceded in the interview that the road conditions were not ideal. He was asked what the speed limit was and said it was 60 kilometres per hour, but that it was necessary to drive to the conditions, which he then described in the following terms:
The road was wet due to rain, recent rain fall and it was dark that’s all I can tell you.
He was asked in those conditions how he would travel and said:
I generally slow down, well I don’t, I don’t go over 60 I can tell you that. … I stated (to Constable Basher) that I thought I was doing between 55 and 60, I think it might have been more between 50 and 60 probably about 55 because the indicator on my speedo goes from 50 to 60 and there’s no 55. …
He was asked what reflection there was from the roadway and said:
Oh quite a few lights there were you know just you see the lights on the road in the reflections but there was nothing glaring from the road itself I don’t think just it’s like a patchwork quilt of night lights.
Evidence of Mr Hall re Factors Affecting Lookout
I accept that Mr Hall was qualified by virtue of experience and research, to give evidence as to night time visibility, and reaction time amongst other things. There was no challenge to his expertise. Mr Hall was asked to assume that there was heavy traffic in the south bound lanes, that head lights were burning on all vehicles, that it had been raining and the road was wet, and that the scooter was stationary near the centre line between the north and south bound lanes waiting to turn right into Maud Street. I find that all those assumptions were established on the evidence.
He was asked what effect those conditions would have on a person’s ability to see the motor cyclist if a driver was travelling in the same direction as the motor cyclist in the kerb side lane for north bound traffic. He said:
When the driver is in the kerb side lane and is trying to detect something that is set three metres to his right, and we talk about the eccentricity of the target, then he has to look across to his right to fixate on that object, he has to literally look across to his right to be able to detect it and recognise what it is, but in doing so he will be looking at an angle and across into where the headlights are. … The amount of lights coming from those headlights is still strong enough to cause interference in the back ground. Added to that is the issue that glare is being reflected off the wet surface in the foreground. So you have two effects. You’ve got bright reflection in the foreground, you’ve got the bright lights in the background, and there would have been multicoloured light because of the reflection of brake lights and tail lights reflecting off the vehicles and onto the road surface, and then there would have been shop lighting and street lighting behind that. Once a person moves across into the right hand lane, that all changes because the background changes. So in order to detect an object without lights it’s going to be extremely difficult then once you add in lights to the situation, the task should become much easier. However, if those lights blend in with what’s in the foreground or background, it once again is a difficult task.
The lights can be readily seen, but it’s actually determining what they are, whether they’re part of a one traffic stream or another. Now the difficulty with the motor cycle is its small size. So where it’s positioned, it sets all of its lights close to where the traffic is. It’s not like looking towards the back of a normal motor vehicle and you’ve got a set of tail lights with one light that is set out in the middle of the road and that can then be immediately recognised, two quite distinct lights with separation. One might be confused in the background, but this other one looks like it’s offset somewhere, I can recognise that as a car. With a motor cycle it is much harder because you’ve only got the one tail light and if that is sitting close to all the other lights it can be confusing for detection purposes.
So it’s more recognition rather than detection … but recognising what it is make take some time to organise in your mind.

Mr Hall was asked “would a driver’s ability to be able to detect the scooter in the right hand lane, would it be putting it too high to say that their ability to detect it would be strongly affected by headlight glare and so on.” and said:
Definitely, it wouldn’t be too strong to say that, I would say it’s a fact, it will be strongly affected by the headlight glare and that may change due to the separation between the vehicles travelling south. At one stage, when a vehicle is close to the rear of another there might not be such strong headlight glare but then as it separates, both headlights may be visible to a person who is in the left hand lane and looking across at an angle. So the actual glare can change in a short space of time and then the adaption for the eye to actually adapt to the new light level all takes time, so definitely glare is a significant factor.
Evidence of Mr Hall re Reaction Time
Mr Hall’s evidence in part was as follows:
There’s been a lot of testing done in this area, both for day time and night time driving and typically we would call it the perception reaction time of the driver and a figure of one to one and a half seconds is generally spoken about as what you would expect a typical driver to achieve when faced with an emergency situation. … So in ideal conditions driving down the road, good daylight, not much traffic, a dog or person runs out in front, a simple situation in terms of what decision has to be made and then one and a half seconds as a reaction time will cover 85% of the population.
Taking into account the night conditions, traffic, headlight glare, and the wet road Mr Hall said that he would be happy to accept that three seconds would not be an inappropriate reaction time in the circumstances of this case.
He said that if the accused was travelling at about 55 kilometres per hour that three seconds would place him 46 metres away from the point of impact. Ms Petralas said to Constable Liebich, and I accept, that she saw the van still in the process of moving into the right lane for north bound traffic when it was about 30 metres from the point of impact.
Conclusion
Counsel for the prosecution criticised the accused’s driving on the basis of what he said was driving at an excessive speed in the traffic and weather circumstances, the dangerous manoeuvre into the centre lane, and the failure to keep a proper look out, all of which were aggravated by the fact that the accused was suffering from a significant reduction in normal visual acuity which should have led him to drive more carefully.
On the evidence of the prosecution witnesses there was nothing remarkable about the lane changing manoeuvre. I have found that the speed of the accused’s van at impact, given my finding that there was no braking upon approach, was no more than 50 kilometres per hour.
The prosecution asserted appropriately, clearly Mr Raphael was there to be seen. The accused offered, admittedly in a statement to police rather than in evidence, a reason for his failure to do so, namely that the lights on Mr Raphael’s scooter were in effect masked by being against a background of the lights of oncoming traffic while the lane changing manoeuvre occurred. Once the accused had completed his manoeuvre into the right lane he could have been no more than 25 metres from the point of impact. The evidence of Ms Petralas is consistent with that. It was at that point that the accused should have been able to recognise as opposed to merely detect the presence of the lights on the back of the scooter. He says that he did not see the scooter until the last minute. As counsel for the accused submitted, at about 50 kilometres per hour, that manoeuvre was taking place when the accused was between one and a half and two and a half seconds from impact, which is within the expected reaction time according to Mr Hall’s evidence.
As counsel for the accused said, it is not appropriate to reason backwards from the outcome to conclude at the required level of proof, that the accused was driving in a manner dangerous to the public, it is necessary to consider the nature of the accused’s driving.
Mr Hall’s evidence provides a credible explanation for the accused’s failure to recognise the lights on the scooter for what they were, until it was too late.
I am unable to conclude beyond reasonable doubt that Mr Spooner’s driving was such a grave departure from the standard of care expected of road users that it imposed a risk that an ordinary person, in the position of the accused in the circumstances prevailing that evening, would recognise as a real danger to the public. I cannot be satisfied beyond reasonable doubt that he is guilty of the offence of causing death by dangerous driving. Nor can I be satisfied beyond reasonable doubt that he is guilty of the alternative charge of driving without due care.
Verdict
In relation to the charge of causing death by dangerous driving – not guilty.
In relation to the alternative charge of driving without due care – not guilty.