R v Sully - [2011] SASC 169

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Criminal)
R v SULLY
Criminal Trial by Judge Alone
[2011] SASC 169
Judgment of The Honourable Justice Kelly
7 October 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - CAUSATION
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - AID, ABET, COUNSEL OR PROCURE
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - MISCELLANEOUS ROAD RULES - DUTIES OF DRIVER INVOLVED IN A CRASH - FAILURE TO STOP AT SCENE OF CRASH
Trial by judge alone – accused jointly charged with co-accused who pleaded guilty on first morning of the trial – trial proceeded with the accused as single defendant – accused charged with four counts of causing death and harm by dangerous driving contrary to ss 19A(1) and 19A(3) of the Criminal Law Consolidation Act 1935 (SA) and one count of leaving an accident scene after causing death by careless driving contrary to s 19AB(1) of the Criminal Law Consolidation Act 1935 (SA) – accused alleged to have aided and abetted dangerous driving and departed the scene after a collision occurred – whether co-accused guilty of principal offence – allegation of drag racing – co-accused’s vehicle in collision with another vehicle – whether co-accused drove in a manner dangerous to public, whether co-accused’s driving a substantial cause of collision – whether accused aided and abetted offence committed by co-accused – whether elements of offence contrary to s 19AB(1) of the Criminal Law Consolidation Act 1935 (SA) proved.
Held: co-accused’s driving dangerous to public and was a substantial cause of death and injury to victims – accused guilty as charged of all offences.
Criminal Law Consolidation Act 1935 (SA) s 19A(1), s 19A(3), s 19AB(1); Road Traffic Act 1961 (SA) s 43, referred to.
R v Golding & Edwards (2008) 100 SASR 216; R v Power & Power (1996) 87 A Crim R 407; R v Lowery & King (No 2) [1972] VR 560; McBride v The Queen (1965) 115 CLR 44; R v Coventry (1938) 59 CLR 633, discussed.
R v Ciantar (2006) 16 VR 26; R v Leaf-Milham (1987) 47 SASR 499; Giorgianni v The Queen (1985) 156 CLR 473; R v Beck [1990] 1 Qd R 30; Guthridge v The Queen (2010) 202 A Crim R 572; R v Duong & Ors [2011] SASCFC 100; R v O'Flaherty [2004] 2 Cr App R 20; Pfeiffer v The Queen (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, King CJ, Cox and Olsson JJ, 11 December 1990); R v Mayne (1975) 11 SASR 583, considered.

R v SULLY
[2011] SASC 169
Criminal: Trial by Judge Alone
KELLY J.
Introduction

The accused Corey Michael Sully was jointly charged with Scott Stephen Fenney on an Information charging four counts of causing death and harm by dangerous driving contrary to s 19A(1) and s 19A(3) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). He is also charged with leaving an accident scene after causing death by careless driving contrary to s 19AB(1) of the Act. Both accused elected to be tried by judge alone. On the morning of the first day of the trial Mr Fenney pleaded guilty to the four counts with which he was jointly charged with the accused. The trial against the accused then proceeded on all five counts.
The prosecution case alleges that on Thursday 14 May 2009 on a section between Cheltenham Parade and Torrens Road, Woodville North, the accused was involved in a high speed drag race with a blue Subaru driven by Mr Fenney (“the blue Subaru”).
At the intersection of Audley Street and Torrens Road, while both vehicles were still travelling in the city‑bound lanes of Torrens Road at speeds estimated by eye witnesses to be in excess of 100 kilometres per hour, the blue Subaru collided with a Toyota Corolla driven by Madeline Claire Smith (“the Toyota Corolla”). As a result of that collision the passenger in the Toyota Corolla, Thomas Michael Brooks, was killed (count one), and the driver of the Toyota Corolla Ms Smith suffered a fractured collarbone and other soft tissue injuries (count two). Two passengers in the blue Subaru also suffered injuries. Kiri Ann Kerr, seated in the rear left position, suffered a fracture of the pedicles of C2, a right tibial fracture and abdominal wall contusions (count three). Steven Wright, the front seat passenger suffered lacerations and abrasions to his head requiring stitches (count four).
The prosecution allege that the accused, Mr Sully, who was driving a green Subaru (“the green Subaru”), also drove at high speed along Torrens Road for a distance of just under one kilometre between Cheltenham Parade and Torrens Road, but that his vehicle was not one of the two vehicles that collided. The prosecution allege that the accused witnessed the collision which occurred shortly ahead of him in the right‑hand lane for city‑bound traffic on Torrens Road, but immediately drove away from the collision scene by turning left into Audley Street. The allegation of failing to stop at the collision scene and render assistance gives rise to count five on the Information, which is the charge of leaving an accident scene after causing death by careless driving.
Ms Nelson QC, who acts for Mr Fenney, intimated to the Court at the time when the pleas of guilty were entered by Mr Fenney that he would contest the factual basis alleged by the prosecution that prior to the collision Mr Fenney and Mr Sully had been drag racing along Torrens Road. She indicated that the speed at which Mr Fenney was alleged to have been travelling immediately prior to the collision which caused the death and harm to the victims would also be contested. Mr Fenney denies that he was racing with the accused Mr Sully at any time on Torrens Road.
In light of Ms Nelson’s intimation, I adopted an unusual procedure to ensure that the witnesses called at the trial of Mr Sully would not need to be recalled subsequently on any disputed fact hearing relating to Mr Fenney. I permitted Ms Nelson to cross‑examine at large any witness called at the trial of Mr Sully. I make it clear at the outset that in reaching my conclusion about this matter I have taken into account the evidence admissible against Mr Sully only. Specifically, I have not taken anything which Mr Fenney said to the police into account.
The Elements of Causing Death or Harm by Dangerous Driving
The matters which must be proved on each of the four counts of causing death or harm by dangerous driving are identical with the exception of the nature of the harm caused. In the case of count one the allegation is that the dangerous driving caused the death of Mr Brooks. In relation to count two the allegation is that the dangerous driving caused harm to Ms Smith. The allegation in relation to count three is that the dangerous driving caused serious harm to Ms Kerr and in relation to count four the allegation is that the dangerous driving caused harm to Mr Wright.
I turn to consider each of the matters which must be proved beyond reasonable doubt before the accused Mr Sully could be found guilty of the offences of causing death or harm by dangerous driving.
— First, it must be proved that Mr Fenney was the driver of the vehicle which collided with the Toyota Corolla.
—Second, it must be proved that Mr Fenney drove in a manner which was dangerous to the public.
—Third, assuming the first two matters have been proved beyond reasonable doubt then it must be proved that the dangerous driving of Mr Fenney caused the death of Mr Brooks in the case of count one, and the harm alleged to each of Ms Smith, Ms Kerr and Mr Wright in the case of counts two to four.
If those three matters are proved beyond reasonable doubt then it must further be proved that the accused Mr Sully aided, abetted, counselled or procured Mr Fenney to commit that offence.
A person aids and abets another in the commission of a crime if he is present while another commits the crime, and he either assists the other in its commission or, he intentionally encourages the other person to commit the crime. The matters which must therefore be proved beyond reasonable doubt on the charge of aiding and abetting are that:
·Mr Fenney committed the crime of causing death by dangerous driving;
·The accused was present or in the vicinity when the crime was committed;
·The accused knew all of the essential facts or circumstances making up the crime of dangerous driving; and
·The accused intentionally assisted or encouraged Mr Fenney to drive in a manner which was dangerous to the public.
It will be necessary to discuss these elements in more detail later in the context of the factual issues which arise.
The case against the accused is largely circumstantial although there are a number of eye witnesses who observed both Subarus as they travelled down Torrens Road between Cheltenham Parade and Audley Street on the evening of 14 May 2009.
I bear in mind that I cannot convict the accused of any offence unless I conclude that there is no reasonable explanation other than that the accused is guilty of the offence. To put that another way, if there is any reasonable explanation for the evidence other than that the accused is guilty of the particular offence under consideration, then he must be acquitted.
I bear in mind at all times that the accused does not have to prove his innocence. He is not to be convicted on any charge unless I am satisfied beyond reasonable doubt of his guilt on that particular charge. In this judgment where I use the term ‘satisfied’, ‘accept’, or ‘proved’ I mean satisfied, accepted, or proved beyond reasonable doubt.
The Evidence
Ms Sonia Schandursky
Sonia Schandursky was driving a dark blue Holden Caprice in the right‑hand lane of Cheltenham Parade towards Torrens Road on 14 May 2009. She said that she was travelling on Cheltenham Parade at a point somewhere over the railway line when she became aware of the behaviour of two other vehicles behind and alongside of her. One was a green coloured “sporty sort of looking” car travelling alongside of her which then stopped in the middle of its lane. She then saw a darker vehicle which had pulled out of a side street just after the railway line, and it stopped in the right lane alongside of the green vehicle. Ms Schandursky said she saw this in her rear vision mirror as she was in front of both vehicles. When she stopped at the intersection of Cheltenham Parade and Torrens Road she turned around and saw the green vehicle immediately behind her without its headlights on. She yelled out and motioned to the driver to turn his lights back on and he did. She then turned right for her line of traffic into the right‑hand lane of Torrens Road. After she turned she realised that the darker vehicle passed her in the left‑hand lane and she then moved straight into that lane behind the darker vehicle. The green car then followed in the right‑hand lane – the lane in which it had turned into from Cheltenham Parade. She estimated the speed of the darker vehicle as it passed her in the left lane to be well over 50 kilometres per hour – it was speeding. When the green vehicle accelerated past her in the right lane she estimated its speed was about the same as the darker vehicle - about 60 to 80 kilometres per hour. She saw both vehicles speeding along Torrens Road, the darker vehicle in the left‑hand lane and the green vehicle in the right‑hand lane.
Her vision became impeded when a four‑wheel drive turned from one of the side roads into the left‑hand lane of Torrens Road. Ms Schandursky continued to travel along in the left‑hand lane behind the four‑wheel drive and came to a stop behind that four‑wheel drive when she realised there had been a collision up ahead.
This witness said she spoke to a police officer that night and gave her name and address, however she agreed that she was never approached by the police for a statement. She did not make a statement to anyone until September 2010, some 16 months after the event. Ms Schandursky agreed that the mother of Mr Brooks had approached her parents looking for her because Mr Brooks’ mother wanted her to make a statement about the collision.
In cross‑examination Ms Schandursky agreed that her vision of the darker vehicle was obscured after the four‑wheel drive came out of a street on her left. It was also obvious in cross‑examination that Ms Schandursky had very little opportunity to view either the darker or the green vehicle as it travelled along Torrens Road because of the presence of the four‑wheel drive in front of her. She did not witness the collision.
There are aspects of her account of the behaviour of both the green and the darker vehicle on Cheltenham Parade which are puzzling. In particular, her recollection that the darker vehicle came from a side street off Cheltenham Parade is contrary to almost all of the other witnesses who observed the blue Subaru on Cheltenham Parade. It might be that Ms Schandursky is mistaken about where the darker vehicle she saw on Cheltenham Parade came from, or indeed whether that is the same vehicle which later passed her after she turned from Cheltenham Parade into Torrens Road. However nothing much turns on this as there is no suggestion that either of the vehicles which she observed were drag racing on Cheltenham Parade. Given this witness never gave a statement about what she observed until 16 months after that night, her recollection of events may well have been impaired. All I can infer from the evidence of this witness is that both the green Subaru and the blue Subaru passed her vehicle immediately after she turned right from Cheltenham Parade into Torrens Road. The last she saw of both vehicles was that they both sped off down Torrens Road towards the city. Her vision ahead was obscured by at least one other vehicle. She did not see the collision.
Ms Schandursky did not concede in cross‑examination that she might be wrong about the lane in which she said each vehicle was travelling as the two cars pulled away ahead of her on Torrens Road.
Although I have no reason to disbelieve this witness, in all of the circumstances I cannot place much weight on her evidence as she did not have the vehicles under observation at the critical time. She said that the vehicles passed her somewhere around Harrison Road (a side street off Torrens Road). It is the behaviour of the two vehicles after that point which is of critical importance in this trial.
Mr Richard Kozuszko
Richard Kozuszko is a 32 year old man who was driving to work in the city shortly after 8.30pm on 14 May 2009. He turned left into Torrens Road from Addison Road after waiting for the lights at the intersection of Addison Road, Torrens Road and Cheltenham Parade to turn green for his direction of travel. At the time when he turned into Torrens Road he first noticed two Subarus, which he recognised as WRX models. One was a standard blue colour and the other was a non‑standard colour which he described as “lime green”.
Mr Kozuszko was not able to say which of the Subarus turned into Torrens Road first, nor was he definitely certain about which lane each Subaru was in, and ultimately conceded that he could not be sure about that. However this witness was certain that after he turned into the left‑hand lane of Torrens Road both Subarus overtook him in the right‑hand lane at approximately 65 to 70 kilometres per hour, and then one of them changed into the left lane. At that point they both changed down gears and started racing. His evidence on that topic is important:[1]
[1] Transcript at 125-126.
A.The following car, the green car, changed into the left-hand lane to pull up alongside the blue car. Then they both dropped back through the gears because I could hear the engines revving, then they started racing.
Q.Can you describe what you mean by 'dropped back through the gears'.
A.I am assuming they are both manual cars. They would have gone either into third or second gear because you could hear the engines rev, probably so they could accelerate better, and then started racing.
Q.When that occurred what position were those vehicles in.
A.They were both level with each other.
Q.Which vehicle was in the left lane.
A.The green one would have been in the left lane and the blue one in the right.
Q.What happened after you heard the gears drop down.
A.They both started accelerating.
Q.Could you give some estimate of the speed they reached.
A.From the way they were pulling away, probably got up to about 100, 120.
Q.How quickly did they pull away from your vehicle.
A.Quickly.
Q.Did you maintain your speed or change your speed.
A.Maintained it.
Q.Did you follow the progress of those vehicles.
A.Yeah, because I was heading in the same direction, so yes.
Q.Were there any other vehicles in front of you apart from those two vehicles which had passed you.
A.No, the road was pretty much empty.
Q.Are you able to say whether each of the Subarus remained level with each other, or whether one went ahead of the other.
A.They were about level. I couldn't really tell which one was ahead of the other.
Mr Kozuszko was cross‑examined about his observation that the two cars were travelling about level:[2]
[2] Transcript at 130-131.
Q.Can I ask you this: as the Subarus travelled away from you, did it appear that the Subaru that was in the right-hand lane was ahead of the Subaru in the left-hand lane.
A.I couldn't tell, it was very close.
…
Q.Just on that topic, are you able to tell us the distance that separated them, are we talking for instance maybe 100, 150 m between the two Subarus.
A.No.
Q.How far do you say they were separated.
A.Less than 10 m.
Q.At this stage were you 300 m behind.
A.No, I was still accelerating away, still fairly close behind at that stage.
Q.So as they moved further away from you, did they become further separated.
A.No, they were still fairly close.
Q.Is it the case that as they moved further away from you, the distance between the Subaru in the right-hand lane and the Subaru in the left-hand lane became greater.
A.No, they still looked fairly close.
At one stage Mr Kozuszko saw the brake lights briefly on the blue Subaru which he thought was located in the left‑hand lane.
Mr Kozuszko was not certain about how close he was to the intersection of Audley Street and Torrens Road when the collision occurred, however he was close enough to see a person flying through the air. He was cross‑examined about that observation also and made it absolutely clear that he actually saw the person flying through the air.
Mr Kozuszko stopped his vehicle about 50 metres to the west of Audley Street, and the collision scene. He called an ambulance and assisted people who appeared to be injured at the scene. He made some notes after he arrived at work later that night. He was cross‑examined about the notes he made. During cross‑examination Mr Kozuszko quite frankly conceded that he made a number of assumptions about what must have happened during the collision and immediately thereafter as he said he did not actually see the Toyota Corolla. He was also unable to say which of the Subarus, the blue or the lime green one, was actually involved in the collision. He agreed that in his notes he had recorded the fact that the lime green car must have been ahead of the blue Subaru. He said he assumed that because the green Subaru missed the collision. He knew the green Subaru missed the collision because he saw it turning left into Audley Street. He was cross‑examined closely about these matters:[3]
[3] Transcript at 136-137.
Q.So what you are again doing is you are trying to work out in your own mind what might have happened in this accident, aren't you.
A.Yes.
Q.Because you didn't actually see what happened or where the particular cars were at the time of the accident, did you.
A.No, they were 300 m ahead.
Q.I'm sorry.
A.No, they were a distance ahead.
Q.So after you have been to the scene of the accident and heard maybe people speak and seen things, you have then gone and made your notes trying to rationalise and assume to some extent what might have happened. Do you agree with that.
A.Not to the extent that you are saying.
Q.Finally, although I agree with you that you were passed by the two WRXs possibly back near Northgate Street, after they passed you they were not racing or dragging.
A.They were. It is simple physics. To get that distance in front they weren't doing 60 k an hour. At the speed to normally get 300 m ahead.
Q.The blue WRX when it was involved in the collision might have been 300 m ahead of you but the green WRX wasn't.
A.Was a similar distance.
Q.I suggest to you the green WRX was probably about 150 m ahead of you, if that. Do you agree with that.
A.I disagree with that.
Q.What you have done, having been to the collision and seen what's happened, is drawn an assumption that these cars were dragging or racing when I suggest they were not, is that the case.
A.No.

Later he was further cross‑examined by Ms Nelson about the length of time he had both vehicles under observation after they passed him earlier on Torrens Road:[4]
[4] Transcript at 139.
Q.How long did you have these vehicles under observation ahead of you after they passed you before the accident.
A.The whole time.
Q.Yes, I know, but how long are we talking about.
A.15, 20 seconds.
Q.Can I suggest that they were pulling away from you and in that timeframe you aren't in a position to estimate the speed of those vehicles with any accuracy, are you.
A.I can be reasonably accurate the distance they got in front of me.
Q.But you said you could be wrong about that distance.
A.Of course.
Q.So your estimate of the speed of these two Subarus, can I suggest, as an impression that you formed.
A.It's an estimate. It is what I say. It's an estimate.
Q.It's an estimate that may not be accurate.
A.That's right.
In the notes he made after the collision Mr Kozuszko recorded that the blue car, the leading of the two cars, moved into the left lane. He conceded that he might have been mistaken about which car was in which lane.
This witness was criticised by both Mr Algie and Ms Nelson as unreliable. Although there were some inaccuracies in his notes, and he made a number of assumptions about what occurred during and after the collision, I consider that Mr Kozuszko was accurate and reliable about his observations about what occurred prior to the collision. He was plainly mistaken about which lane each vehicle was travelling in on Torrens Road as the two vehicles accelerated away from him. However, on the critical issue of the driving behaviour of the green and the blue Subarus immediately after passing him, I am satisfied that Mr Kozuszko’s evidence is accurate. He had both Subarus under constant observation without any impediment to his vision as they travelled away from his vehicle. They were straight in front of him.
Mr Kozuszko sensibly conceded that he was unable to be certain of the exact distance that he was from Audley Street at the time of the collision. However, I regard it as significant that he was close enough to the scene of the collision to see the body of Mr Brooks as it was thrown into the air as a result of impact. He stopped his vehicle about 50 metres on the western side of Audley Street. That is significant when considering the accused’s statement to police that he was 200 metres behind the blue Subaru at the time of the collision and did not even see the collision happen. I do not consider that the assumption made by Mr Kozuszko about what the green Subaru did immediately after the collision as in any way undermining the accuracy of the evidence of his observations of what happened prior to the collision. Nor does that assumption undermine the evidence he gave that he actually observed the green Subaru travel left down Audley Street after the collision. That is indeed what happened.
Mr Kozuszko had a clear view of the road ahead of his vehicle. He assessed the speed at which both the green and blue Subarus pulled away from him by reference to his own rate of speed which remained constant at 60 kilometres per hour. He sensibly conceded that his estimate of the speed may not be accurate, but firmly maintained that both Subarus accelerated away from his vehicle at a much faster speed than 60 kilometres per hour.
He saw the brake lights of one of the cars, which he thought was the car in the left lane come on briefly five or 10 seconds before he heard the “thud” of the collision. That observation is consistent with the accused slowing down as he approached Audley Street. I am satisfied that the brake lights he observed were the brake lights of the accused’s vehicle.
This witness, like other witnesses to the collision, was evidently distressed by the collision and its aftermath, however I do not consider that his acknowledged assumptions of how the collision must have occurred to undermine the critical observations he made of the behaviour of the two vehicles immediately before the collision.
Mr Kozuszko’s estimate of the speed of the two vehicles as they accelerated away from him as being in the range of 100 to 120 kilometres per hour is consistent with the observations of both Mr Hamilton and Mr Petruzzelli about the speed of the car/cars which those witnesses saw. It is to their evidence I now turn.
Mr Raymond Hamilton
Raymond Hamilton is a 62 year old moulding technician employed at Trident Plastics on Torrens Road. At about 8.30 to 8.45pm on the night of 14 May 2009 he and his co‑worker Mr Petruzzelli were having a lunch break while sitting outside Trident Plastics in a small alcove. It was later agreed this alcove was about 96 to 97 metres from the point of the collision. In fact, I visited and stood in this alcove on a view.
Mr Hamilton said that he often sees cars driving down Torrens Road on Thursday and Friday nights, and for some reason they seem to “pick up the pace”[5] on those nights. On this night his attention was drawn to something unusual, namely the sound of a car going fairly fast. He said that he could tell the car was driving fast just by the sound of its motor. When he first heard the approaching vehicle he was sitting on a plastic milk crate leaning against the northern wall of the alcove outside Trident Plastics. When questioned about the sound of the vehicle he said it sounded “like a motor going at its peak”.[6] He also said the vehicle went past so fast he could not even determine what lane it was in. Mr Hamilton estimated the speed which the vehicle went past his line of vision was well over 100 kilometres per hour. He only saw the vehicle for a couple of seconds, and he agreed that his line of vision would only have been about 50 metres. He said approximately five or six seconds later he heard the crash. When questioned about his observations he said:[7]
Q.Can I suggest you didn't hear anything to indicate changing gears.
A.No, I didn't. All I heard was like the sound of the engine roaring. Even if you just sat in your car and put your foot flat on the floor, it was kind of that sound.
[5]    Transcript at 143.
[6]    Transcript at 142.
[7]    Transcript at 146.
Questioned further he said:[8]
[8] Transcript at 146.
Q.From your position you only saw it for about 50 m.
A.Yes, that's all.
Q.Can I suggest that that wasn't sufficient time for you to form an estimate of speed that was accurate.
A.I suppose you could estimate that by working out 50 m and how long it would take to go past there.
Q.According to you, it took a couple of seconds.
A.That's right. If they can work out in two seconds how far you travel, I suppose you could work it out.
Q.I'm asking you, and I'm putting it to you, that given the observation time that you had of this vehicle, you really couldn't form an accurate estimate of speed.
A.Just going by what normal traffic goes past there, it almost went past in like a blur so you don't do that if you're only doing the speed limit or just over.
Mr James Petruzzelli
James Petruzzelli is a maintenance fitter aged 47 and he was the co‑worker sitting with Mr Hamilton outside Trident Plastics when the collision occurred. He said his attention was drawn to the revving of a car engine. About five to 10 seconds later he saw a car which “sped straight past in a pretty quick flash”.[9] Asked to describe the sound of the noise he heard he said:[10]
It was very loud. It's like you can hear the difference between having your foot on a car idling and your foot put down pretty hard on the accelerator of your own car at home, if you have ever done that.
[9] Transcript at 179.
[10] Transcript at 179.
At the same time he vaguely saw the slight back end of another vehicle. He saw a green spoiler of a vehicle which was virtually neck and neck with a black car. The black car was in the lead but not by much. This witness was asked to estimate the speed of the vehicles as they passed and responded “I’d definitely have to say over a hundred”.[11]
[11] Transcript at 181.
When Mr Petruzzelli was questioned about the accuracy of his observations he agreed that his field of vision was approximately between the start of the storage business across the road and ended roughly where Audley Street is. However he confirmed later that from where he sat he could not actually see Audley Street. He agreed that on the night when he first spoke to police he said nothing about having observed a second car. He said:[12]
[12] Transcript at 185.
Q.When you spoke to him your only recollection was of seeing one car, the dark car, wasn't it.
A.That's correct.
Q.Do you think that might be correct, that what you saw was, in fact, just the one dark car go by.
A.No, I seen two cars, the back end of another car was next to that car.
Q.How did it come about that you obtained a recollection of seeing two cars.
A.Because from where I was sitting that's exactly what I could see. If you put them neck to neck like that, that's exactly what I could see, the back end of another car. I couldn't make out what it was at the time, but that's what it was, there was another car next to it.
Q.That's what you have said here and I understand that, but on the evening when you went over to where the accident was and then you spoke to the police officer, at that point your recollection was that there was only one car, the dark car, wasn't it.
A.Yes.
Q.Is it the case that something happened a few days later that changed that recollection.
A.No, nothing's changed the recollection.
Q.Isn't it the case that -
A.Only not knowing what colour exactly the car was that was next to it. That was on the media the next day. That was about it.
He was questioned whether he could be mistaken about having seen a second car and said this:[13]
Q.Bearing in mind that when you first spoke to the police that night you described seeing only the one car, the dark car, do you think you might now be mistaken in thinking that there was a second green car there at that time.
A.Absolutely not. When you are a little bit distraught, like I was that night, when you've got someone's body on the ground and you are trying to help people and your brain's going all over the place, it's not a very easy thing to cope with. Okay?
[13] Transcript at 186-187.
He was also questioned about the accuracy of his estimate of the speed of the vehicles:[14]
[14] Transcript at 188.
Q.Can I suggest that you didn't have that dark vehicle under observation for a sufficient period of time to form an accurate estimate of speed.
A.No, not really. I know what I seen.
Q.I'm not suggesting you didn't see it.
A.And my 30 years experience of driving indicates to me what I seen. I think I've been to enough drag races at Adelaide International when I was a kid to know what speed is and what speed isn't.
Q.You observed this vehicle over less than 60 m, didn't you.
A.Yes, that's correct.
Q.How long did it take that vehicle to travel those 60 m.
A.Very quick. It was a flash.
Q.It was a flash.
A.It was fast.
Q.I'm not disputing what you say, that it was fast, but what I'm suggesting is that it's very difficult, when a vehicle just flashes past, to put an accurate speed to it.
A.With the motor revving like that, yes, if that's what you want to think, if that's what you think.
Q.No, I am asking you.
A.And I'm telling you, with the motor revving like that and with the flash I seen, that's what I seen.
This witness also said it was roughly five to six seconds after the cars flashed past that they heard the bang.
Given that the viewing point of these two witnesses was less than 100 metres from the point of collision I find their observations to be of critical importance. Mr Petruzzelli’s evidence is consistent with the observations of Mr Kozuszko that both Subarus were travelling at a high speed along Torrens Road within 100 metres of, and in the moments before, the collision. I accept both these witnesses’ accounts.
The fact that Mr Hamilton could not observe or hear another vehicle in my view is neither here nor there. From where he was sitting it is not surprising that he did not see as much as Mr Petruzzelli. Although Mr Petruzzelli agreed to a proposition put to him in cross-examination by Ms Nelson that his field of vision during which he had the car under observation was less than 60 metres, it is apparent from his earlier answers on the same topic to Mr Algie that his field of vision at the relevant time may have been more than that. The distance between the Safeco Storage premises and Audley Street is approximately 194 metres. Even allowing for the fact that he could not see all the way to the Audley Street intersection that field of vision is considerably greater than 60 metres. Mr Petruzzelli’s evidence has left me in no doubt that the green Subaru was still travelling with or very close behind the blue Subaru as it passed the Trident Plastics factory.
This contradicts the statements made by the accused to the police and the evidence of Mr Maylin as to the speed and position of the green Subaru on Torrens Road when the blue Subaru collided with the Toyota Corolla.
Mr David Maylin
Two of the accused’s friends were passengers in the green Subaru. One of these was David Maylin who was seated in the left rear passenger seat.
He said that he and the accused drank approximately one to one and a half cans of bourbon and coke before setting out in the evening to visit a friend who was an auto‑electrician who might be able to help with a problem the accused was having with the ABS (Anti-Lock Braking System) light on the dashboard of his car.
He first noticed the blue Subaru when it crossed past the green Subaru at the traffic lights on Port Road and Cheltenham Parade. The accused overtook the blue Subaru while they were both travelling along Cheltenham Parade at a speed of approximately 60 to 70 kilometres per hour. At the intersection of Cheltenham Parade and Torrens Road the blue Subaru crossed back into the same lane as the green Subaru and immediately behind it. After the lights turned green for the accused’s direction of travel, the accused turned into the right‑hand lane of Torrens Road for city‑bound traffic and passed another vehicle which had turned from Cheltenham Parade into the left lane. The accused overtook this vehicle at about 60 to 70 kilometres per hour. He estimated that this overtaking occurred somewhere between the intersection from which they turned and Harrison Road.
Immediately after the turn into Torrens Road this witness said that the blue Subaru was about a car length behind. In response to a specific question Mr Maylin said he looked back to see where the blue Subaru was and saw that it was sitting right behind. Later he added that he thought it was very strange for the car to be sitting right behind them as it was very dangerous. Once the accused overtook the car in front of him and moved into the left lane, the blue Subaru sped up and travelled alongside the green Subaru. Mr Maylin thought that this occurred at about the junction with Northgate Street and Torrens Road. At that time he estimated the accused’s speed to be about 65 to 70 kilometres per hour. According to Mr Maylin the two Subarus travelled together on Torrens Road for only about 10 or 20 metres.
Mr Maylin said that the accused’s vehicle was a five speed manual, and at the time when the two Subarus were travelling together the accused went from second to third gear. He was asked specifically about that manoeuvre in examination in chief:[15]
[15] Transcript at 160-161.
Q.From the time that the two Subarus were travelling alongside each other on Torrens Road, can you describe what occurred with Corey's gears, what did he do.
A.He went from second to third.
Q.How did he go from second to third, how would you describe it.
A.Put his foot down and then changed into third gear.
Q.What do you mean by 'put his foot down'.
A.Reasonably heavily, not all the way, but reasonably.
…
Q.What happened to the speed of the vehicle once Corey had accelerated, put his foot down and gone into third gear.
A.Just kept it at third gear.
Q.From your experience, what speed can a Subaru go in third gear.
A.Roughly I'd say probably anywhere between 80-120, I guess. I've never actually taken a Subaru out to third gear before.
…
Q.In any case, it's your evidence that Mr Sully accelerated from second to third and stayed in third.
A.Yes.
Q.At what speed was his vehicle going then.
A.Anywhere between 60 and 80.
Mr Maylin maintained that the accused kept a constant speed along Torrens Road and that the blue Subaru was only travelling level with the green Subaru for about 10 to 20 metres.
He was asked about what speed the blue Subaru reached after accelerating past and estimated anywhere between 80 to 100 kilometres per hour. This witness says he did not keep the blue Subaru under observation. He was asked whether he had any particular interest in the blue Subaru and said:[16]
Q.Did you have any particular interest in the blue Subaru.
A.No.
Q.Why did you look back at it again, tell me.
A.Just to see where it was, because it was fairly close right behind us, and I thought it was very strange for a car to be sitting right behind us, very dangerous.
Q.Why were you looking at it when it was level with you.
A.I just saw it going past, to see what was going on.
[16] Transcript at 162-163.
According to Mr Maylin the blue Subaru accelerated away. The accused remained in third gear anywhere between 60 to 80 kilometres per hour. Mr Maylin said that the accused did not appear to be trying to keep up with the blue Subaru.
This witness said he was not paying any particular attention when he heard a loud bang and saw that there was dust and smoke ahead. At the time when he heard the bang the accused’s vehicle was about 50 to 100 metres behind the blue Subaru.
Mr Maylin was the person giving directions to where his auto‑electrician friend resided. He said he mentioned that Audley Street was coming up but he cannot now remember when exactly he said that. He thought he said it before the collision. Once the collision happened he said the accused slowed down and turned left into Audley Street.
He realised that there was serious damage to the car involved in the collision. He thought there was only one vehicle involved. He did not see another car. He estimated the accused turned into Audley Street at a speed of about 15 to 20 kilometres per hour. The accused drove very slowly down Audley Street as they were all in shock.
Mr Maylin said nothing much was said on the way home in light of the fact that everyone was very shocked. Nothing was said about going to the auto-electrician’s house, but the accused continued to drive and took Mr Maylin back home. When they arrived back at Mr Maylin’s house they had a cigarette out the front of the house for about 10 minutes and then the accused left with the other passenger, Sophie Hayes.
Mr Maylin did not recall that anyone suggested ringing the police, and he maintained that there was no discussion of any kind in the car on the way home. Mr Maylin went to the police the next day after a discussion with the accused who said that he was going to speak to the police.

In cross‑examination by Mr Algie Mr Maylin agreed that the distance of the green Subaru behind the blue Subaru at the point of impact might have been as much as 150 metres.
In cross‑examination by Ms Nelson Mr Maylin agreed that at the time when the blue Subaru passed the accused’s vehicle the accused was travelling roughly between 60 and 80 kilometres per hour.
It can be seen from the foregoing that the evidence given by this witness is inconsistent with the prosecution case, and largely consistent with the account given by the accused to the police on the morning of 15 May 2009. Nevertheless, I did not find Mr Maylin to be an impressive witness. In particular, I found his evidence concerning the behaviour of himself and the other two occupants of the green Subaru as they drove away from the collision to be surprising. Mr Maylin is a 31 year old man who holds a responsible position as a retail manager with a national supermarket chain. According to this witness, it did not occur to him or apparently any of the occupants of the green Subaru, to either stop, or at the very least phone for an ambulance or the police. He claimed to be in so much shock that these things did not occur to him. Mr Maylin and the accused had a cigarette for about 10 minutes after arriving at his house at Camden Park and it seems that it still did not occur to him to make a phone call or do anything else about the collision which he had just witnessed. It appears to have only occurred to Mr Maylin to go to the police the next day after a phone conversation with the accused who told him he was going to the police station.
I find his evidence about the driving behaviour of the accused after the blue Subaru passed them on Torrens Road less than convincing. His evidence was not tested in cross‑examination. That is hardly surprising given that his evidence was consistent in the main with the account given by the accused to the police. It was plain to me that Mr Maylin is not a disinterested witness in these proceedings.
I do not believe his explanation about why it did not occur to him to go to the police until the next day. In all of the circumstances I am not prepared to rely on the evidence of this witness.
Mr Travis Watkins
Travis Watkins is a 22 year old man who was driving along Torrens Road at about the same time as the accused and Mr Fenney. He was driving a blue Holden Commodore on Torrens Road towards the city at a speed of approximately 50 to 60 kilometres per hour when he realised that there was a car behind him travelling at a fairly rapid speed. Mr Watkins said he was in the right‑hand lane for city‑bound traffic.
On the approach towards the mosque which is situated on the corner of Torrens Road and Audley Street, he observed a vehicle approaching him from the other side of Torrens Road. That vehicle appeared to be slowing down to turn right into a side street. There is no dispute that this side street was Audley Street.
He observed that vehicle approach in the slip‑lane. He noticed that the vehicle had its lights on, however he was not certain whether the right‑hand indicator was on. He thought the indicator was on because he was pretty sure that is what drew his attention to that vehicle. The vehicle looked like it was slowing down to execute the right‑hand turn.
When he was very close to the mosque Mr Watkins noticed in his rear‑vision view a car with its headlights on travelling at a fairly rapid speed because it was making ground on his vehicle. He said he really noticed it because its headlights were flashing up and down. Mr Watkins said that the vehicle approaching him from behind was in the left lane for city‑bound traffic. He claimed to be able to see both sides of the road in his rear‑vision mirror, but said apart from the set of approaching lights described by him in the left lane he saw no other traffic approaching from behind.
It is not entirely clear from Mr Watkins’ evidence where the car was when he first noticed it in his rear vision mirror. He said that he first noticed the vehicle approaching him from behind when he was about 50 metres before the mosque on the corner of Audley Street and Torrens Road. He identified that point by reference to the map.[17] Then he said he first saw the vehicle when it was somewhere between Northgate Street and Carlton Crescent. By reference to other measurements taken of the scene that distance is over 500 metres from the intersection of Audley Street and Torrens Road. Later however he agreed in cross-examination that when he first noticed the car it was about 100 to 200 metres behind. He observed the collision through his rear‑vision mirror and then accelerated to get out of the way of the blue vehicle which he saw spinning sideways towards him. Mr Watkins then did a U-turn further down Torrens Road and came back to the scene of the collision.
[17] Exhibit P1.
I bear in mind that Mr Watkins was travelling in front of the two Subarus, and apart from the vehicle he observed slowing down to turn right at the intersection of Audley Street and Torrens Road, his view of what was happening behind him was exclusively through the rear‑vision mirror of his vehicle. In these circumstances he could well be mistaken about distances, speeds and the lane in which he observed the headlights of the approaching vehicle. There is no dispute that the blue Subaru was in fact in the right‑hand lane for city‑bound traffic. In these circumstances it appears far more likely that the headlights of the vehicle seen by Mr Watkins were the headlights of the blue Subaru as it approached in the same lane behind him.
It was submitted that Mr Watkins’ observations excluded any possibility that the green Subaru was travelling approximately level with the blue Subaru at the time when Mr Watkins had the headlights of the vehicle, whichever one it was, in his view through the rear‑vision mirror. However I cannot accept that that is necessarily so. Mr Watkins was obviously watching the road ahead and observed in some detail the driving of the car to his right. In these circumstances he could not have continuously observed the headlights of the approaching vehicle, nor did he purport to be definite about the point at which he first observed the headlights of the approaching vehicle in his rear vision. The fact is there were other vehicles approaching from behind on Torrens Road at that time including Mr Kozuszko and the accused’s vehicle. There is ample scope in the evidence to support the conclusion that what Mr Watkins saw was the approaching headlights of Mr Fenney’s vehicle when it was less than 250 metres from the point of collision. In these circumstances it might well be the case that he did not see the headlights of any other vehicles approaching from the rear on Torrens Road, including the accused’s vehicle in the left lane. For these reasons I do not accept that Mr Watkins’ evidence can be, or is, decisive on the question of the whereabouts of the accused’s vehicle immediately prior to the collision.
Ms Kiri Ann Kerr
Kiri Ann Kerr, now aged 27, was in the rear passenger seat of the blue Subaru on 14 May 2009.
Earlier that day she had travelled with her father to a hotel and met up with Mr Fenney and his friend, Steven Wright. Later she was in the blue Subaru with Mr Wright in the front passenger seat, travelling along Port Road when she first noticed a lime green Subaru on Port Road travelling in front. Both vehicles turned left into Cheltenham Parade from Port Road with the green Subaru still in front. Ms Kerr said she was somewhat preoccupied in the back seat texting her new boyfriend. She did not notice whether the vehicles had to stop at the intersection of Cheltenham Parade and Torrens Road, however her next memory of seeing the green Subaru was on Torrens Road. Ms Kerr looked up and she saw the green Subaru behind the blue Subaru and another light coloured vehicle which Ms Kerr described as a Commodore alongside of them.
Ms Kerr’s evidence about the relative position of the green car, the Commodore and the blue Subaru was not entirely clear. She was asked:[18]
Q.Whereabouts along Torrens Road was it that you noticed the green Subaru to your left and a little behind.
A.It was only a matter of seconds before the car accident that I noticed them because I looked back and then I remember looking up and looking back and then looked behind and then there was another car and then Scott yelled out that we were going to hit and that's when we hit the other car.
[18] Transcript at 228.
Ms Kerr said she could not say anything about the speed of the green Subaru, all she could say was that the green Subaru was about two car lengths behind. According to Ms Kerr at that very time the light coloured Commodore was next to the blue Subaru.
Ms Kerr could say nothing about how long the green Subaru was travelling near the blue Subaru on Torrens Road. She was cross‑examined about these observations:[19]
[19] Transcript at 234.
Q.Can we just spend a moment on that. Your recollection is that you were in the right-hand lane.
A.Yes.
Q.And your recollection is that there was another car alongside the vehicle in which you were travelling, is that right.
A.Yeah.
Q.And that car obviously was in the left-hand lane.
A.Yes.
Q.And that's a car that I think you described as being, you think, a white car.
A.Yes.
Q.And it is behind that car that you recall seeing the green Subaru.
A.Yes.
Q.The three of you travelling in a group.
A.Yes. The green Subaru would have been at least a car length behind from what I remember seeing, that white car.
Ms Kerr was asked whether she might be mistaken and that she had actually seen the three cars travelling together at an earlier point on Torrens Road when the blue Subaru driven by Mr Fenney was actually overtaking the other two cars on Torrens Road.
Ms Kerr did not concede that possibility. From her recollection the blue Subaru was in the right‑hand lane nearly the whole time they travelled along Torrens Road and remained travelling in a group until just before the collision occurred. She was questioned about her recollection and said:[20]
[20] Transcript at 236.
Q.So your recollection is that the three cars were travelling in a group in the positions you have described just before the accident on Audley Street.
A.Yeah.
Q.Could you be wrong about that do you think.
A.Maybe. I was texting and I was just looking up and looking down.
Q.Because I suggest to you that when the accident happened at Audley Street, there were no cars near your vehicle, no cars within probably 100 m of your vehicle, might that be right.
A.They were pretty close to us just before the accident because that's when I looked up and then like there was cars there.
Q.And that's where you describe the whitish car to the left a little behind and then the green Subaru behind that.
A.Yes.
Q.That's your recollection.
A.Correct.
Ms Kerr said that she was not continuously looking at the road as they travelled along Torrens Road. It is obvious that she was preoccupied with her own texting for the entire journey. I also bear in mind that this witness was quite seriously injured in the collision. She was trapped in the blue Subaru for a time after the collision and had to be assisted from the vehicle. She suffered a right tibial fracture which required internal fixation with an intramedullary nail, a fracture of the pedicles in the neck at C2 and abdominal wall contusions. Ms Kerr was in hospital for about two weeks and needed to have a rod inserted into her leg. She had surgery the very next morning after she was admitted to hospital. At the time of giving evidence she still had the rod in her leg and was still attending hospital and medical appointments in connection with continuing pain and residual headaches.
I consider that because of her own injuries and the fact that she was preoccupied with texting on her phone and only intermittently observed what was going on outside, Ms Kerr’s evidence about what she saw is not necessarily reliable. Nevertheless her evidence does support generally the conclusion that at least for a period of time on Torrens Road the blue Subaru and the green Subaru were travelling very close together.
Senior Constable Spence
The prosecution called a police officer employed in the Major Crash Investigation Unit with the South Australian Police. He was called as an expert in collision reconstruction and assessment. There was no challenge per se to the expertise of Senior Constable Spence, however his methodology and the accuracy of his calculations were very much in dispute.
Senior Constable Spence was asked to estimate the speed of the blue Subaru on impact with the Toyota Corolla.
He explained that in order to do that he relied on information supplied from the Major Crash Investigation Unit of the Police, in this case Senior Constable Keir. That information included photographs of the scene, a scale plan of the collision scene, and physical evidence of gouge and scrape marks observed on the roadway. Senior Constable Spence frankly acknowledged that he did not attend the collision scene until about 10 days later.
Senior Constable Spence explained the mathematical formula by which he calculated the post‑impact and pre-impact speeds of the two vehicles. In order to perform necessary calculations he needed from both vehicles: their mass (weight), their approach and departure angles, the distance that both vehicles travelled after the collision, and the individual friction values. The acceleration and deceleration rates of the blue Subaru were also required.
This additional information was gained from a combination of estimates based on experience from previous crash investigations, physical examinations of both the blue Subaru and Toyota Corolla, and internet searches of open source technical data pertaining to similar models of Subaru.
The physical markings on the roadway enabled the preliminary investigators to determine the approximate point of impact between the blue Subaru and the Toyota Corolla. From that point of impact Senior Constable Spence measured the post‑impact distance travelled by both the vehicles.
The mass of each of the vehicles was gained from an internet search, as was the acceleration rate of the blue Subaru.
The departure angles were calculated with regard to a few factors: the photographs of the scene, information from the scene investigators and the physical evidence actually left at the collision site. In this case the physical evidence included a fluid trail apparently left by the blue Subaru and numerous gouge and scrape marks seen in the photographs and plan. The departure angles provided by Senior Constable Spence were zero to 10 degrees for the blue Subaru and 13 to 23 degrees for the Toyota Corolla.
The friction rates applied to both vehicles were based on Senior Constable Spence’s experience and his deductions made from physical inspections of the vehicles. Senior Constable Spence stated that he applied a range of 0.65 to 0.75 to the Subaru. A generic value of 0.7 is usually given to vehicles travelling along a dry bitumen road from their tyres under full braking. Cars fitted with ABS have a higher friction value. Senior Constable Spence examined both vehicles and applied a friction value to the Subaru on the basis that the front left wheel would not rotate and was in fact completely locked. He believed that post‑impact the blue Subaru would only have had 30 per cent of its available braking capacity and therefore the friction values were less than the optimum. He calculated the range to be 0.195 to 0.225. The range given to the Toyota Corolla was 0.4 to 0.5 because the metal wreckage of the Toyota Corolla obtained less friction than the blue Subaru which kept its tyres in contact with the bitumen after the collision.
Some of the assumptions made by Senior Constable Spence were uncontroversial, including the assumption that the blue Subaru had prior to the impact been travelling east in the right‑hand lane for city‑bound traffic, and that the Toyota Corolla had entered that same right‑hand lane by approximately two metres at the point of impact. The physical evidence left at the scene provided a plain enough explanation that the blue Subaru almost literally tore through the Toyota Corolla, splitting it in two, and then continued in a easterly direction before coming to rest at approximately 65 metres from the estimated point of impact.
There were some controversial assumptions made by Senior Constable Spence. The first was the calculation of departure angles of both vehicles from only looking at the scene photographs and scale plans provided by Major Crash investigators. Senior Constable Spence did not take any measurements or observations himself but wholly relied on information provided to him, but to be fair to him, there was little point in doing so when he attended the collision scene some 10 days later. The second controversial assumption was Senior Constable Spence’s method of obtaining some pieces of critical data (and his subsequent acceptance and use) required for his calculations.
The effect of the assumptions made by Senior Constable Spence, in his opinion, resulted in a very conservative approach to the calculation of estimates of both the post‑impact and pre‑impact speeds of the respective vehicles. This conservative approach led to an application by Senior Constable Spence of a range to both the departure angles and friction values, which translated into the conservative estimates of speed ranges.
The post-impact speed was calculated using mathematical equations that show a relationship between that speed, the vehicle’s friction value, and the distance the vehicles travelled post-impact. Senior Constable Spence calculated the post-impact speed of the blue Subaru to be in the range of 57 to 61 kilometres per hour and the Toyota Corolla’s to be 49 to 55 kilometres per hour.
Along with this post-impact speed, the total mass of the vehicles and their approach and departure angles are required to calculate a speed at impact. In addition to the raw weights of both vehicles gained from internet searches as outlined above, Senior Constable Spence obtained estimates of the weights of each vehicle’s occupants from investigating officers to include in his calculations. Using this data, the blue Subaru’s speed at impact was calculated to be 104 to 113 kilometres per hour and the Toyota Corolla’s impact speed was 26 to 29 kilometres per hour.
Given Ms Smith’s description of what she said she did immediately prior to the impact (slow down to a complete stop before commencing to turn right), the estimated speed of the Toyota Corolla for the purpose of Senior Constable Spence’s calculations seems to be a little high. During his oral evidence, Senior Constable Spence was asked to recalculate the impact speed of the blue Subaru if the Toyota Corolla was travelling between five and 10 kilometres per hour as it was not done as part of his report. However the assumptions which Senior Constable Spence then made to produce an impact speed of 91 to 100 kilometres per hour included an assumption that the Toyota Corolla was stationary. He was never asked to do calculations which assumed the Toyota Corolla was travelling between five to 10 kilometres per hour.
A direct proposition was put to Senior Constable Spence in cross‑examination that the blue Subaru must have been travelling slower than 92.5 kilometres per hour because of the slower speed of the Toyota Corolla (keeping the same departure angles). Senior Constable Spence maintained that the speed of the Toyota Corolla was faster than five to 10 kilometres per hour because of the damage sustained by the blue Subaru, and the fact that the blue Subaru travelled approximately 65 metres after the collision. The blue Subaru’s front right mudguard was pushed inwards towards the engine compartment and the bonnet had also been pushed to the left. This indicated some force had pushed from the left at the time of impact. If the Toyota Corolla had have been stationary or at a speed close to stationary then the damage to the blue Subaru would have been straight back towards the windscreen. Senior Constable Spence maintained his view that the blue Subaru must have been travelling faster than 92.5 kilometres per hour because of the damage to the blue Subaru and the distance it travelled post‑impact.

Senior Constable Spence was cross‑examined extensively about the various assumptions he made in reaching those figures. Importantly he conceded that although the green Subaru was drivable and available in the police compound, he never actually drove that vehicle or examined it to form any of his opinions.
Senior Constable Spence acknowledged that he had obtained the acceleration information from an internet website which deals in the sale of similar model Subarus. That published acceleration rate was zero to 100 kilometres per hour in 5.6 seconds.
Senior Constable Spence applied what he believed to be a generic deceleration rate relevant to almost any motor vehicle. He applied a mathematical formula to the specific friction value of 0.7 and then held the Subaru’s deceleration rate was 6.867 m/s². Applying that deceleration rate he said it would take a vehicle approximately 54 metres to slow down from 100 to 20 kilometres per hour. He agreed that this was the best result under heavy braking. Another witness, Mr Eliot McDonald, the police mechanic, gave evidence that the wheels of the accused’s green Subaru locked and skidded when the brakes were applied “extremely heavily” even at more moderate speeds of 45 to 50 kilometres per hour.[21]
[21] Transcript at 325.
Senior Constable Spence also agreed that reaction times were not factored in to estimate the actual time it would take an average driver to slow down from 100 to 20 kilometres per hour. However he agreed that a generic reaction time of two to two and a half seconds was not unreasonable.
Given Senior Constable Spence’s concessions that he heavily relied on information from the internet for the mass of both vehicles and the acceleration rates of the blue Subaru, I consider that very little weight can be attached to the opinions of this witness. This is particularly so in light of the concession by this witness that the green Subaru involved in this incident was available to be tested and yet no police officer, aside from this witness, apparently thought it necessary to test it to obtain accurate data first-hand. Senior Constable Spence’s opinions would have had far more weight had a similar make and model of vehicle in question (even if it was not the exact vehicle) been road tested for its acceleration and deceleration rates.
In all of the circumstances I consider the only weight that should be placed on this witness’ opinions is to ask whether there is anything in this witness’ evidence which supports the defence case as to the speed of both Subarus at the time of collision and, if there is anything in this evidence to support the defence case that the green Subaru was not travelling alongside of, or even close to, the blue Subaru in the 500 metres prior to the collision.
I find that all Senior Constable Spence’s evidence really does is provide the Court with some generic acceleration and deceleration rates and a range of pre‑impact speeds which are not very precise given the inexactness and ambiguities attached to the data for calculation. Many of the assumptions and much of the information he relied on to make his calculations appears to bear no relationship to the proven facts. On the issue of the speed of the vehicles involved in the collision I find the evidence of the eye witnesses to be more reliable.
The Accused
The accused did not give evidence at the trial, however a video of a conversation which he had with the police at the Sturt Police Station on the morning of 15 May 2009 was tendered by the prosecution.[22] He was arrested later that morning and it was the video of the interview between the accused and Brevet Sergeant Lovell which was tendered.
[22] Exhibit P6.
I bear in mind that the accused was not obliged to give evidence. He had the right, which he exercised, to refrain from giving evidence and to leave it to the prosecution if it could to prove its case beyond reasonable doubt on each of the charges. It is for the prosecution to prove these charges against the accused and I draw no inference adverse to the accused because he has chosen to exercise his legal right to refrain from giving evidence.
I bear in mind also that apart from giving his name and address and some of the other particulars required under road traffic legislation that the accused was not obliged to speak to the police either. However he did choose to speak to the police on the morning of 15 May 2009 and what he said to the police forms part of the evidence before me. His statement to the police is relied on by both the prosecution and the defence in this trial.
The accused denied racing with Mr Fenney. He told the police he was on his way to the home of an auto‑electrician who lived at Woodville to see if he could fix a problem with the ABS light on his dashboard.
There was no dispute at the trial that the auto‑electrician Mr Huy Nguyen lived on Fourteenth Avenue, Woodville and a convenient way to get there from Cheltenham Parade and Torrens Road is to turn left at Audley Street and then drive into Fourteenth Avenue.
The accused said he had never seen the guy in the blue Subaru before. He first saw the blue Subaru on Cheltenham Parade. He was explicitly asked by the police officer about the behaviour of the blue Subaru and whether it had been tailgating:[23]
[23] Exhibit P6A at 22-24.
Q.Did anything strike you unusual as you’ve when you first saw this WRX because you said it came up behind you, did it come up behind you.
A.No.
Q.At a reasonable speed or fast speed or did it tailgate.
A.No.
Q.Swerve around you.
A.Wasn’t tailgating no tailgating or anything like it was just loud exhaust stuff like that like it wasn’t anything over the top but then when like I said we turned onto Torrens Road I put my foot down to take over this car and then sixty five (65) I was going and then just Sssssshhhhhh gone just flat out.
Q.Prior to, prior to that bit did that blue WRX try entice you into a drag in any way.
A.No, not really.
Q.Have you been in a, a driver of a car when someone has tried to entice you into a drag. You, do you know what I mean by that.
A.Yeah, yeah I’ve been in that situation before and.
Q.Yeah.
A.And yeah.
Q.People revving the car and going forward and braking.
A.... in audible ….
Q.A little bit or what ever.
A.The usual stuff and yeah none of that happened.
Q.You wouldn’t describe anything that, that person did in that WRX as trying to.
A.Maybe the, maybe the flyby when they went past me on Torrens Road maybe that was trying revving me up I don’t know but like I said I turned just up there so there’s no way I’m going to go flat out.
Q.So I’ll try and get this right you were at the intersection of Cheltenham Parade there’s two (2) lanes to turn right.
A.One (1).
Q.To Torrens.
A.One (1) lane.
Q.One (1) lane to turn right from Cheltenham Parade onto Torrens.
A.Yes.
Q.There was a Toyota.
A.I think a Camry.
Q.Okay. Possibly a Camry in front of you.
A.Yeah.
He was then asked what happened after the two Subarus turned right onto Torrens Road and he gave the following account:[24]
[24] Exhibit P6A at 24-25.
Q.Overtook to get in front of the Camry.
A.To get in front of the Camry.
Q.So you could do a left turn.
A.Yeah further up at Audley Avenue and the chhhh.
Q.And the WRX stayed behind you until.
A.I’m veered left into … in audible …
Q.… in audible … and then you did the take off.
A.Mmmm.
Q.Describe the behaviour of the car as it took off past you. Quick.
A.Bloody quick.
Q.Wheel spin or anything.
A.Nah because it’s all wheel drive it doesn’t really spin the wheels so it just yeah loud and catch you later.
Q.Turbo.
A.Yeah definitely.
Q.You could hear what could you.
A.Couldn’t hear a Turbo just cause the exhaust.
Q.Yeah.
A.But it was just you know what I mean like cause we were just cruising along and I’m just like what ever dickhead like this kind of thing I’m not, I’m not going to play your game and he was just rrnnn it’s gone and that’s what I mean it was that far up ahead that I didn’t even see the accident happen it took my girlfriend and Dave to say Holy Shit what’s going on like there’s a big accident.
His account of what happened at the collision scene is contained in the following exchange:[25]
A.Not even I don’t know I didn’t take any notice maybe it was still I didn’t know I’d have to go back and have a look like ‘cause it was dark and stuff like that and there was no street lights I mean I didn’t see car lights from the other car, that’s what I mean I didn’t even know there was another car involved because I didn’t see their lights on obviously I didn’t see the accident like I told yous but Sophie says swears a hundred per cent I never saw lights all I saw was I saw a car spin and land up on the island and then just flying across the road that’s all I saw and I was still a hundred metres away at this time.
Q.And all this happened in front of you.
A.All this happened in front of me and I was just like Holy shit what do I my hands started shaking instantly, so I turned left onto Audley slowed right down and Dave’s like Ushhhh shit so I said I’m, I’m panicking round a lot I’ve got to get out of here.
Q.Mmmm.
A.I was shitting myself.
[25] Exhibit P6A at 27-28.
At the time when the crash occurred the accused told the police he would have been 200 metres behind. When the police asked him explicitly if the crash occurred at the Audley Street intersection the accused said he had read it in the paper that the car was turning into Audley Street and that is where “they” hit him.
He acknowledged to the police officer that it was pretty clear that there had been a crash there as they saw debris flying across the road and a car pivoting on the “centre thing”.
He told the police what happened in the vehicle between he, his partner Ms Hayes and Mr Maylin on the way home. At one stage he said there was silence in the car or at least very little was said, however at another stage of the interview he acknowledged to the police officer that they tried to figure out on the way home what hit the blue Subaru.
The accused, like Mr Maylin in evidence before me, told the police that he was in a very shocked state on the way home and therefore no conversation took place. He was asked what happened after he turned into Audley Street:[26]
Q.What happened from there.
A.I slowed down a bit I was like what the hell do we do, what the hell do we do and then I said I feel guilty I got to go back and then I just couldn’t bring myself to go back ‘cause I was that scared and Sophie didn’t say a word until we got back to Dave’s house she didn’t say anything.
[26] Exhibit P6A at 33.
The accused in response to questioning by the police about whether it occurred to anyone to phone the police said that he had not taken his mobile phone with him, and that his friend David Maylin had no credit on his phone, and in any case he was in too much of a shocked state to phone anyone or to suggest to the others that they did.
He said he was very scared:[27]
A.We were just all in the frame of mind that we were in was just I just can’t believe we saw that, you know what I mean like it’s just that quick and it kind of scared the shit like we drove slower on the way home cause it just it was that petrifying like just from what we saw.
[27] Exhibit P6A at 34.
He was asked by the police why he felt guilty:[28]
Q.You’ve mentioned before you felt guilty ‘cause you didn’t stop.
A.Yeah I felt.
Q.Why would you feel guilty.
A.After, afterwards because I don’t know I’m usually a good citizen I’d stop for something like that but it just scared.
Q.In this case you didn’t.
A.I don’t know it just scared the hell out of me because he’s driving exactly what I’m driving same friggin’ car and I saw how it happened, it just scared me hhhh scared me to death.
[28] Exhibit P6A at 35.
He said that although he had heard about the fact that the police were looking for him through the media he was going to go to the Sturt Police Station and see the police regardless.
He said nothing to either of his parents when he got home but went straight to his bedroom.
He admitted that he knew the collision was very bad and would not be surprised to hear that someone had died. Asked whether he had seen the other car the accused replied:[29]
A.No I did not see the other car lights on cause I was that far back, you know what I mean like I didn’t, I wasn’t focusing up that end of the road, I was focusing on coming up to my street to turn left like I wasn’t concentrating on what he was doing I was like yeah what ever, go speed get yourself in trouble and yeah I’m just trying to that’s what going to be going through my mind I’m trying to think of ways I could have prevented it from happening but I don’t see anyway that I could have because I didn’t do anything wrong.
Q.Do you think in hindsight you should have stopped to assist anyone in the car.
A.Most definitely but I had, I don’t think I could have done it I honestly don’t.
[29] Exhibit P6A at 37.
Asked by the police officer what was going on in the car on the way home the accused said:[30]
[30] Exhibit P6A at 39.
Q.What’s going on in the car.
A.Sophie was just crying and all over the place like. I said are you okay and she didn’t even answer me, you know what I mean and I was shaking at the same time. Dave was just silent as well like it was nothing, there was nothing to be said that’s what how I felt like it felt like we were all alone. I felt like I was by myself.
Q.As a person who thinks logically I, I’d like to think so.
A.Mmmm.
Q.Does, wouldn’t that mean my girlfriend’s in distress, I will stop and comfort her.
A.Hhhh it does but see I don’t know, I just made sure she was all right like I kept on asking her, are you okay, are you okay and she goes yes after about five (5) times.
Q.And she…
A.And she, she, she was dealing it with, with it in her own way and then probably about half way home she put her hand on my leg and said, I’ve never seen anything like that before and that was about it, like it was as though I felt alone in the matter we were still there for each other, if that makes sense.
There are some very curious aspects about the interview the accused gave to the police. I have formed the impression after viewing the whole of the video of the interview that the accused was not wholly truthful in that interview, either about what happened as he drove his Subaru along Torrens Road or about his reasons for not stopping after the collision. The accused plainly knew that he had just witnessed a very serious collision in which in all probability someone had died. According to the accused he said very little to either of his companions on the drive home and nothing at all to his parents, one at least of whom was still up watching television when he arrived home. His explanation to the police that he felt guilty because he realised that the car involved in the collision was the very same make and model of vehicle as his own lacks credibility.
If I reject the accused’s account of why he left the scene of the accident and did not go to a police station until the next morning, then his conduct in leaving the accident scene is capable of supporting the inference that he left the scene of the accident because he realised that he was culpable in some way for the collision which occurred. In this respect, the accused’s post‑accident conduct in leaving the accident scene without stopping or rendering assistance is part of the whole body of circumstantial evidence relevant to the issue I have to decide.
I have considered the appropriate use which can be made of this evidence. The relevance of this type of evidence was discussed by Doyle CJ in R v Power & Power:[31]
In my opinion, the evidence was admissible. Taken as a whole it was evidence upon which the jury might conclude that the conduct of the appellants manifested a consciousness of guilt. There is adequate authority to support the view that evidence of flight (and I use this term compendiously to describe the whole of the evidence, because in my opinion it is all interrelated) is admissible as showing a consciousness of guilt: see, eg, Melrose [1989] 1 Qd R 572; (1987) 30 A Crim R 332. It will not be often in such cases that the evidence is unequivocally indicative of guilt. There may, I suppose, be cases in which the evidence is intractably neutral, but I fail to see how the evidence in this case can be so regarded. Of course, the explanation advanced by the appellants was not a ludicrous or obviously false one, but to my mind that does not render the evidence incapable of supplying proof or evidence of guilt. If it did, then much circumstantial evidence which is routinely admitted would be rejected. In my opinion, the ruling by White J, reported in Bridgman (1980) 24 SASR 278, is not to be taken as meaning that evidence of flight is inadmissible simply because a credible explanation is advanced. In my opinion, the approach to be taken is that indicated by Sheperdson J in Melrose (at 579; 338-339) (assuming that the evidence is not intractably neutral):
“I would however say that in my opinion, when there is evidence of flight before a jury whether there be one or more than one reason advanced for that flight, the jury should be told that it is for them to decide on the whole of the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from the accused person's flight but if at the end of the day they decide to infer a consciousness of guilt in the accused person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference.”
In my opinion, the judge rightly admitted the evidence for the purpose identified by the prosecution.
[31] R v Power & Power (1996) 87 A Crim R 407 at 409.
In R v Ciantar[32] the Victorian Court of Appeal reviewed a number of authorities on the topic of lies and post‑offence conduct generally. Ciantar accords with the comments of Doyle CJ in Power and I have borne those principles in mind when determining the relevance of and weight to be attached to the evidence of the accused’s post‑accident conduct.
[32] R v Ciantar (2006) 16 VR 26 at [44]-[45] and [52]-[54].
I have considered the accused’s explanations to the police about what happened on 14 May 2009 and about why he did not contact police until the next morning after the collision. In particular I have considered whether it is reasonably possible that the guilt the accused said he felt after the collision could be attributable to some minor behaviour falling short of any criminal complicity engaged in earlier on Torrens Road when the blue Subaru first passed his car. There is some basis in the evidence of Mr Maylin and in the account which the accused gave to the police to suggest that all which occurred was that the accused revved his gears in response to Mr Fenney speeding past him, without the accused engaging in any racing in tandem with Mr Fenney. On that scenario the offence of aiding and abetting could not be made out. However, other eye witness accounts of the behaviour of the accused’s green Subaru as he drove along Torrens Road are inconsistent with what the accused and Mr Maylin have said about the same driving on Torrens Road. I have also considered whether it is reasonably possible that the accused’s post‑accident behaviour in leaving the scene of the collision is attributable to the shock, fear and panic he said he experienced. Whilst I have no difficulty in accepting that the accused, and indeed his two companions, may well have been shocked and distressed by what they saw, I cannot accept that that is the real reason the accused drove off without stopping.

In light of the totality of the evidence before me which I accept, I have reached the conclusion that contrary to the accused’s account to the police, the reason he left the accident scene without stopping was precisely because he did feel responsible to some degree for the collision. He felt responsible because he encouraged the dangerous driving of Mr Fenney by racing with him for at least some distance along Torrens Road.
Discussion
Before the accused could be found guilty of aiding and abetting the dangerous driving of Mr Fenney it must first be established that Mr Fenney did drive in a manner which was dangerous and thereby caused the death of Mr Brooks, and harm to Ms Smith, Ms Kerr and Mr Wright respectively. Apart from one issue as to the legal characterisation of the harm suffered by Ms Kerr, the facts of the death of Mr Brooks and the injuries to the three victims Ms Smith, Ms Kerr and Mr Wright are not in dispute.
Whether or not Mr Fenney drove in a manner which was dangerous to the public and whether, even assuming that the dangerous driving is established, his driving was a substantial cause of the death and injuries suffered is however very much in dispute.
There was no dispute that Mr Fenney was the driver of the blue Subaru which collided with the Toyota Corolla. The first issue therefore is to determine if I am satisfied Mr Fenney was driving in a manner which was dangerous to the public. In considering this element I have applied the well established principles which define the nature of the driving necessary to establish the offence of dangerous driving.[33] In considering this element I have also borne in mind the distinction between driving in a manner which is dangerous to the public and driving without due care and attention.
[33] R v Coventry (1938) 59 CLR 633; McBride v The Queen (1965) 115 CLR 44.
In addition I bear in mind that proof of dangerous driving on the part of Mr Fenney does not require any proof as to his state of mind. He need not have intended to drive dangerously to be found guilty of driving dangerously. The test in that respect is an objective one. His driving is to be assessed through the eye of a reasonable driver in the position of Mr Fenney.[34]
[34] R v Coventry (1938) 59 CLR 633 at 635.
The allegation of dangerous driving in this case is based principally if not entirely on the evidence that Mr Fenney was travelling at a fast rate of speed immediately prior to the collision with the Toyota Corolla. It is the prosecution case that Mr Fenney was driving his Subaru at a speed which was so great that he failed to stop or take any evasive action to avoid the turning Toyota Corolla. The prosecution maintain that allegation even taking into account the effect of the partial obstruction of each driver’s view of the road ahead at some point on either approach to the Audley Street intersection caused by the overhanging bush on the median strip approximately 35 metres from Audley Street in the direction of Cheltenham Parade. The prosecution case is that had Mr Fenney not been travelling at such a high speed he could have taken evasive action, slowed down or even stopped prior to the collision.
It is the defence case that the cause of the collision is substantially the negligence of Ms Smith turning right across the face of oncoming traffic thereby giving Mr Fenney no chance to avoid the collision. The defence case goes further and says even had Mr Fenney been travelling at the speed limit the collision could not have been avoided in the face of Ms Smith’s decision to turn right. The accused denies that the driving of Mr Fenney was dangerous and denies that the driving of Mr Fenney however it is characterised, was the cause of the death and the injuries as a result of the collision with the Toyota Corolla.
I deal first with the allegation the blue Subaru driven by Mr Fenney was driving in a dangerous manner.
The preponderance of the evidence which I accept points to the conclusion that the blue Subaru travelled at a very fast rate of speed down Torrens Road. Leaving aside for the moment the imponderables in the evidence of Senior Constable Spence, the fact that on impact the blue Subaru literally sliced the Toyota Corolla in half gives rise in itself to the inference that the blue Subaru was travelling at a very fast rate of speed.
Ms Schandursky said that the blue Subaru was travelling at over 60 kilometres per hour and rapidly accelerated up to 80 kilometres per hour as it overtook her vehicle and the green vehicle and took off. Mr Kozuszko said that both vehicles, that is the green and the blue Subaru, passed him at 65 to 70 kilometres per hour and from the rate at which they pulled ahead of his vehicle he estimated the speed of the blue Subaru to be not less than 100 to 120 kilometres per hour. It is true that Mr Kozuszko made that observation when he thought the blue Subaru was on Torrens Road in a position just past Carlton Crescent. From other evidence that point on the roadway is approximately 560 metres away from Audley Street. Nevertheless when questioned closely Mr Kozuszko maintained that the blue Subaru was definitely travelling over 100 kilometres per hour.
Mr Watkins saw the headlights of a vehicle approaching from behind. He said his attention was drawn to that vehicle by its headlights that were moving up and down. This indicated to him that this vehicle was approaching at a very rapid speed.
Then there is the evidence of Mr Hamilton who saw only one car, a dark car, pass him “like a blur” at a point approximately 96 to 97 metres from the Audley Street intersection. Although Mr Hamilton did not offer any precise estimate of the speed, he commented that if the vehicle was only doing the speed limit or just over it would not have passed him “like a blur”.
Mr Petruzzelli described the cars which sped straight past “in a pretty quick flash” as being virtually neck and neck with the darker car leading, but not by much. His estimate of the speed of the vehicles was over 100 kilometres per hour.
It is telling that even Mr Maylin proffered the comment that the blue Subaru accelerated up to 80 to 100 kilometres per hour after it had passed the green Subaru.
I take into account the deficiencies in the opinions proffered by Senior Constable Spence, however there is nothing in his evidence which supports the conclusion that the blue Subaru could have been doing anything less than 91 kilometres per hour. That opinion was the most conservative speed expressed by Senior Constable Spence based on a scenario put to him which he said was inconsistent with the damage he observed to the front engine compartment of the blue Subaru.
From the totality of the evidence which I accept I infer beyond reasonable doubt that the blue Subaru travelled at a speed of at least 100 kilometres per hour along Torrens Road. It is impossible to calculate with any precision its actual speed on impact with the Toyota Corolla. I find however that the speed could not have been less than 91 kilometres per hour. I infer beyond reasonable doubt that the accused and Mr Fenney commenced to race somewhere on Torrens Road in the vicinity of Harrison Road and Northgate Street and both Subarus were speeding on Torrens Road between that approximate point and a point approximately adjacent to the Trident Plastics factory.
Was that manner of driving in all of the circumstances dangerous?
In answering that question I do not suggest that merely because there was a collision at the intersection of Audley Street and Torrens Road Mr Fenney must have been driving in a manner which was dangerous. As Barwick CJ said in McBride v The Queen:[35]
This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage, though to complete the offence under the section, impact causing damage must occur during that driving. Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section.
[35] McBride v The Queen (1965) 115 CLR 44 at 50.
On the evidence this was a busy suburban road even at 8.30pm on a Thursday night. There are numerous side roads off Torrens Road. Indeed one of the witnesses, Ms Schandursky, said that a four‑wheel drive entered in front of her as she was driving along in the left‑hand lane. All of the circumstances compel a conclusion that driving at speeds of 90 to 100 kilometres per hour or more on that section of Torrens Road at that time was inherently dangerous. It gave Mr Fenney no chance at all to react to any sudden or unexpected emergency. It prevented him from reacting appropriately and either slowing down to a stop or avoiding the Toyota Corolla altogether.
Section 19A(1) of the Act speaks of a speed or manner which is dangerous to the public. As Barwick CJ said in McBride 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.
I find that the manner of driving by Mr Fenney in the several hundred metres from shortly after the intersection with Cheltenham Parade and Torrens Road to the point of the collision was, in all of the circumstances, inherently dangerous.
The next issue which arises is whether that dangerous driving was a substantial cause of the collision.
It is not necessary for the prosecution to prove that the dangerous driving of Mr Fenney was the sole cause of the collision leading to death or injury. It is sufficient if the prosecution prove that the dangerous driving was a substantial cause.[36]
[36] R v Mayne (1975) 11 SASR 583 at 589; R v Leaf-Milham (1987) 47 SASR 499 at 504-505.
It might be that a reasonable and careful driver who was driving that night at the speed limit might also have collided with the Toyota Corolla. However the fallacy in the line of reasoning advanced by Mr Algie in support of the submission that therefore the driving of Mr Fenney was not a substantial cause of the collision, is the assumption that the Toyota Corolla would inevitably have turned right at the very moment when the blue Subaru entered the intersection. The preponderance of the evidence supports the conclusion that Ms Smith, having waited for Mr Watkins’ vehicle to pass, a car which she had no difficulty in seeing and waited for, would have also seen the blue Subaru had he approached the intersection at a safe rate of speed. It was the rapid rate of speed at which Mr Fenney approached that intersection which also effectively deprived Ms Smith of any opportunity to react and take evasive action. There seems to be little doubt that the presence of the overhanging bush obstructed the view of each of the oncoming drivers at least for a short period; however I repeat Ms Smith had no difficulty in sighting and waiting for Mr Watkins’ oncoming vehicle which was travelling in the same lane as the blue Subaru.
I am in no doubt that Mr Fenney’s speed effectively deprived both him and Ms Smith of any opportunity to stop, slow down or take any effective evasive action and avoid the collision.
For these reasons I reject the submission that the cause of the collision was Ms Smith’s negligence. It was the manner of driving of Mr Fenney, whatever the contribution which might have been made by Ms Smith’s failure to remain in her line of traffic or by the impediment of the tree, that was a substantial cause of the collision.
It follows from the foregoing that I am satisfied beyond reasonable doubt that Mr Fenney was driving at a speed and in a manner dangerous and that his dangerous driving was a substantial cause of the death of Mr Brooks and the injuries caused to Ms Smith, Ms Kerr and Mr Wright.
I turn now to consider the issue of whether the accused aided and abetted the commission of the offence by Mr Fenney.
The Elements of the Offence of Aiding and Abetting
A person who is guilty of aiding and abetting must be present when another person commits a crime and either assists or encourages that other person to commit that crime. Therefore it must be proved on a charge of aiding and abetting that the accused intentionally aided or encouraged the other person in the commission of the crime.
The principles generally which apply when considering whether a person is an aider and abetter were conveniently set out by Smith J in R v Lowery & King (No 2):[37]
Even if there is no prior understanding or arrangement that the crime shall be committed a person is guilty in law of a crime committed by the hand of another – another whom the law calls the principal in the first degree – if the person is present when the crime is committed and aids and abets the commission of it. In such circumstances he is called the principal in the second degree and he is equally guilty of the crime with the principal in the first degree. Aiding and abetting in this connexion means doing one or other of these three things while aware that the crime is being committed: first, intentionally helping the principal in the first degree to commit the crime, or, secondly, intentionally encouraging him by words or by your presence and behaviour to commit it, or, thirdly, intentionally conveying to him by words or by your presence and behaviour that you are assenting to and concurring in his commission of the crime. A person present at the scene of the crime and so aiding and abetting a person to commit a crime is in law a principal in the second degree and is guilty in law of the crime committed by the hand of the principal of the first degree.
[37] R v Lowery & King (No 2) [1972] VR 560 at 561-562.
That is the general principle about which trial judges have routinely instructed juries ever since Lowery was decided. However, as Gray J pointed out in R v Golding & Edwards,[38] it is not always easy to apply that general principle to the facts of any particular case. As Gray J observed there has been considerable debate in the authorities about what the prosecution must prove in order to establish whether a person has aided and abetted a crime. I am indebted to Gray J for his summation of the authorities.
[38] R v Golding & Edwards (2008) 100 SASR 216.
There are two cases in particular referred to in Golding that are of practical assistance to me in the context of the facts of this case. The first is Giorgianni v The Queen.[39] There Mason J said:[40]
But the terms are descriptive of a single concept. In this regard, I would adopt the observation of Cussen A.C.J. in R v Russell, as being applicable to secondary participation in misdemeanour. Having listed various words, including “aiding” and “abetting” which have been used to refer to the conduct of a principal in the second degree in felony, his Honour observed:
“All the words above mentioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission.”
[footnotes omitted]
[39] Giorgianni v The Queen (1985) 156 CLR 473.
[40] Giorgianni v The Queen (1985) 156 CLR 473 at 493.
The second is R v Beck[41] where Macrossan CJ made the following observations:[42]
Intentional encouragement may come from expressions, gestures “or actions intended to signify approval”. Voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. It seems that all will depend on a scrutiny of the behaviour of the alleged aider and the principal offender and on the existence which might appear of a bond or connection between the two actors and their actions. ... [A] calculated presence or a presence from which opportunity is taken can project positive encouragement and support to a principal offender. The distinction between a neutral and a guilty presence of a person at the scene of a crime would be for the jury to assess. Proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no telltale acts are performed by the alleged aider but the intention behind and the effect of the presence of the additional person at the scene may be established by other evidence from which it is possible to say that a case of intentional encouragement or support of the principal offender is made out.
[41] R v Beck [1990] 1 Qd R 30.
[42] R v Beck [1990] 1 Qd R 30 at 37.
In the context of the facts alleged by the prosecution in this case, the prosecution must prove that the accused intentionally aided or encouraged Mr Fenney to drive in a manner which was dangerous to the public. Practically speaking, that means it must be proved beyond reasonable doubt that the accused intentionally encouraged Mr Fenney to drive his vehicle at the speed and in the manner which he did along Torrens Road to the intersection with Audley Street. The prosecution must also prove that the assistance or encouragement which the accused gave to Mr Fenney was still operating at the time when the blue Subaru collided with the Toyota Corolla.
In particularising its case against the accused on the charge of aiding and abetting the prosecution relied on the observations of the Victorian Court of Appeal in Guthridge v The Queen.[43] In that case, which also involved allegation of two drivers racing each other, the Court of Appeal (Neave and Redlich JJA and Coghlan AJA) observed:[44]
In our view, where an accused participates in a race on a public road in which another participant in the race directly causes the death of the victim, it is preferable that the Crown present the accused on the basis that he or she aided or abetted the principal offender. Accessorial liability of the non-colliding driver as an aider and abettor does not carry with it the artificiality of reliance on an implied agreement or understanding. It has the further advantage that it would simplify jury directions. The jury would only be required to consider whether they were satisfied beyond reasonable doubt that the actions of the accused encouraged the colliding driver to drive dangerously. As we have already stated, in a case where there is cogent evidence of an agreement or understanding, it will be appropriate for the Crown to rely upon concert.
[43] Guthridge v The Queen (2010) 202 A Crim R 572.
[44] Guthridge v The Queen (2010) 202 A Crim R 572 at [112].
Here the prosecution case is that on the evidence before me the accused could be found guilty of aiding and abetting on two possible factual bases. The first basis is if it is established beyond reasonable doubt that the accused and Mr Fenney were engaged in drag racing together for a distance of approximately 800 metres all the way down to the Audley Street intersection. The second basis is if it is established beyond reasonable doubt that although the accused did not engage in racing with Mr Fenney for that entire distance but commenced to race at a point much farther back on Torrens Road but desisted at some point prior to the Audley Street intersection by braking and commencing to make a left hand turn into Audley Street.
The criminal liability of the accused on the charge of aiding and abetting, if it is established beyond reasonable doubt that he raced with Mr Fenney to the Audley Street intersection, is straightforward. However, on the second scenario the critical issue is whether the actions of the accused in engaging in a race for some distance but dropping out before the collision amounts to aiding and abetting Mr Fenney’s dangerous driving which ultimately caused the collision.

This scenario raises directly the issue of what conduct would amount to an effective disengagement by a person who commences to aid and abet the commission of a crime.
This is not an easy matter to determine and ultimately it must be a question of fact and degree.
Both Doyle CJ and Vanstone J in R v Duong & Ors[45] discussed this very issue in another context. The issue in Duong was not aiding and abetting but whether or not a particular person was party to a joint enterprise at the relevant time when another man was stabbed. Nevertheless the same issue arises in relation to an allegation of aiding and abetting. This is such a case. In considering the critical issue whether the fatal injury was sustained while the joint enterprise was continuing with the appellant still part of that joint enterprise, Doyle CJ in Duong referred to an English case of R v O’Flaherty.[46] In that case the Court said:[47]
Furthermore, the decision in R v Mitchell and King (1998) 163 JP 75, so far as we can see, an authority not brought to the attention of the judge, shows that in a case of spontaneous violence in principle it is possible to withdraw by ceasing to fight, throwing down one’s weapons and walking away. In that case one of Mitchell’s defences was that he had withdrawn before the fatal injuries had been inflicted. It was stated by the Court (p. 81) that in those circumstances the jury had to be directed (a) that they must be satisfied that the fatal injuries were sustained whilst the joint enterprise was continuing and that the defendant was still acting within that joint enterprise, and (b) that they must be satisfied that the acts which caused the death were within the scope of the joint enterprise.
In R v Mitchell and King this Court also considered Soan J. A.’s statement in R v Whitefield that “where practicable and reasonable there must be timely communication of the intention to abandon the common purpose”. It held that while communication of withdrawal is a necessary condition for disassociation from pre-planned violence it is not necessary when the violence is spontaneous.
For these reasons a defendant who effectively disengages or withdraws before the fatal injury is or injuries are inflicted is not guilty of murder because he was not party to and did not participate in any unlawful violence which caused the fatal injury or injuries. We consider that the question whether or not the violence formed one evolving incident or was two separate and discreet incidents is only relevant in helping to decide whether a particular defendant disengaged before the fatal injury or injuries were caused or joined in after they had been caused.
[45] R v Duong & Ors [2011] SASCFC 100.
[46] R v O’Flaherty [2004] 2 Cr App R 20.
[47] R v O’Flaherty [2004] 2 Cr App R 20 at [61]-[63].
In her judgment Vanstone J concurred with the result and added:[48]
In his reasons, the Chief Justice has touched on the English case of R v O’Flaherty [2004] 2 Crim App R 20 315 and the issue of what is required to effect withdrawal from a joint enterprise. The question can also apply to ceasing to aid and abet. As the Chief Justice has observed, there was no evidence that Sem withdrew from any joint enterprise of which he was a part. Mrs Shaw relied on the mere absence of evidence putting him at or near the gates where it is likely the stabbing occurred.
It is not easy to make general statements about what is required in order to effect a withdrawal from a joint enterprise, or to describe what must be done to, in effect, negate the assistance or encouragement necessary to render an aider and abetter criminally responsible. However, in my mind, one would look for communication to the other parties by word or deed of the withdrawal from or abandonment of the crime. A unilateral decision to depart the scene, without any indication to the other parties, would not suffice.
[48] R v Duong & Ors [2011] SASCFC 100 at [202]-[203].
The critical question here is whether I am satisfied beyond reasonable doubt that the accused intentionally encouraged the commission of the offence by Mr Fenney, and whether at the relevant time, namely at the point of the collision, that encouragement by the accused was still operating on the mind of Mr Fenney. To put that question another way: am I satisfied beyond reasonable doubt that the accused participated in a drag race with Mr Fenney? If so, did the accused cease to participate in that race at some point prior to the collision? If so, did the accused’s participation in the race to the point where he desisted amount to sufficient intentional encouragement on his part for Mr Fenney to commit the crime?
I recognise that in answering these questions it has been necessary to analyse, perhaps in a rather artificial fashion, the actions of both the accused and Mr Fenney in that critical period of time which it took both vehicles to travel that approximate one kilometre section of Torrens Road. As I have commented elsewhere, collisions on the roads happen sometimes very quickly and witnesses’ estimates of both time, distances and speeds can never be precisely accurate. This case has been no exception. It is obvious as well that to some degree or another every witness must have engaged in at least some degree of reconstruction in order to articulate what it was they observed that night. In these circumstances people can make errors. Clearly, the witnesses here have made some errors. Nevertheless, for the purpose of resolving the legal issues which arise it is necessary to determine if the encouragement provided by the accused’s earlier driving was still operating on the mind of Mr Fenney when the collision occurred. To put it perhaps another way: was the tacit agreement between the two men to race, evidenced by their actions in “dropping gears” and commencing to speed in tandem still on foot at the point of the collision? On any view of the matter the time lapse between the commencement of the race and the collision can only have been a matter of seconds, certainly not minutes.
The defence case is that all which happened after the accused turned right from Cheltenham Parade into Torrens Road was that he accelerated past another vehicle in the left lane, moved into that left lane himself, changed his vehicle into third gear and then accelerated to a speed of between 60 and 80 kilometres per hour and maintained that speed along Torrens Road until he slowed down to turn left at Audley Street. On the defence case, the accused executed all of those driving manoeuvres independent of anything that the blue Subaru did. If that scenario is reasonably possible then the accused could not be found guilty of aiding and abetting. In that circumstance the accused could not on any view of the matter be found to have intentionally encouraged Mr Fenney to race, even if Mr Fenney, in his own mind, interpreted the driving of the accused’s vehicle as an invitation to race.
I have already discussed elsewhere in these reasons why it is that I am satisfied beyond reasonable doubt that the accused did participate intentionally in racing with Mr Fenney for at least several hundred metres along Torrens Road. I have also found beyond reasonable doubt that at, or proximate to, the Trident Plastics factory the accused was still travelling in close proximity to Mr Fenney’s vehicle. I am not satisfied beyond reasonable doubt that at the time when Mr Petruzzelli saw the back of the accused’s green vehicle that the accused was then still participating in a race with Mr Fenney. However the evidence supports the inference that at that very point, or perhaps just prior to that moment, the accused did commence to brake. That conclusion gains some support from the observations of Mr Kozuszko who saw the brake lights of one of the vehicles come on. However there is no doubt in my mind that the accused and Mr Fenney intentionally raced each other for a distance of at least 500 metres along Torrens Road.
The facts which I find established beyond reasonable doubt are: that both the accused and Mr Fenney “dropped gears” and began racing at a point approximately 300 metres from the intersection of Cheltenham Parade and Torrens Road and raced from there to approximately 100 to 200 metres prior to the Audley Street intersection. The evidence of the eye witnesses who observed the behaviour of the two Subarus as they travelled down Torrens Road supports the conclusion that both vehicles were travelling at a very fast rate of speed for a distance of approximately 500 to 600 metres at least on Torrens Road. The evidence was that the two vehicles travelled more or less in tandem with the darker car slightly in the lead. There was no evidence that the accused’s car pulled over to the side of the road and stopped. There is no evidence that the race was interrupted by the presence of any traffic lights or any other external impediment. The only reason that the accused pulled out of the race was because he intended to turn left into Audley Street, something which Mr Fenney could not have known.
The manner of driving by the accused as observed by Ms Schandursky, Mr Kozuszko and Mr Petruzzelli is consistent with only one conclusion that the accused was intentionally participating in a drag race with Mr Fenney on that section of Torrens Road. The fact that at some point proximate to the Trident Plastics factory the accused braked with the intention of turning left into Audley Street did not in my view negate the accused’s criminal responsibility for aiding and abetting the dangerous driving of Mr Fenney.
I acknowledge that it is always a question of fact and degree, however on the findings which I have made about the accused’s driving, the collision between the blue Subaru and the Toyota Corolla occurred within a matter of seconds only of the accused braking and slowing down to turn left into Audley Street. In the circumstances I do not consider that the abandonment if that is what occurred by the accused of the race at that point was sufficient for him to escape responsibility as an accessory to the other man’s crime. It was simply too late.
The fact that in those circumstances Mr Fenney might still have been racing when the accused had unilaterally withdrawn from the race intending to turn left into Audley Street did not negate the accused’s criminal responsibility for the results of his earlier encouragement. The position might be otherwise if there was some evidence that it was obvious to the other car that the accused pulled over to the side of the road and stopped or if the participation of both in the race had been interrupted by the presence of traffic lights or some other external impediment governing both. However the driving which I have found proved occurred on a section of Torrens Road which was no more than one kilometre in total length. The race did not begin immediately at the intersection of Cheltenham Parade and Torrens Road but shortly after both Subarus had passed the vehicles turning right into Torrens Road with them. The point is that the race between the two drivers began at a point approximately 300 metres along Torrens Road from the intersection with Cheltenham Parade. The evidence thereafter is that both Subarus raced together at speeds of at least 100 kilometres per hour according to the eye witness accounts of Mr Kozuszko, Mr Hamilton, Mr Petruzzelli and others.
I have reminded myself of the comments of King CJ in Pfeiffer v The Queen.[49] Judges, just like juries when viewing the facts of a case are entitled and required to bring their common sense to bear upon the evidence. Applying common sense to the evidence which I accept I find it is established beyond reasonable doubt that the encouragement by the accused to Mr Fenney to drive in a dangerous manner along Torrens Road to the Audley Street intersection was still operating at the time when the collision with the Toyota Corolla occurred. There was a spontaneous decision by both the accused and Mr Fenney to engage in a very dangerous course of driving, albeit for a distance of less than 800 metres. Even accepting that it is ultimately a question of fact and degree, I find that here the accused’s abandonment from the race by slowing down to execute the left hand turn into Audley Street was not such as to negate the earlier encouragement he gave to Mr Fenney by commencing to race with him earlier on Torrens Road. To put it another way, in light of the short window both temporally and geographically in which this race occurred I find that the encouragement which the accused gave to Mr Fenney was still operating in the mind of Mr Fenney at the time when the collision occurred. The chain of causation had not at that stage been broken irrespective of the precise point at which the accused slowed down and made the left‑hand turn into Audley Street.
[49] Pfeiffer v The Queen (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, King CJ, Cox and Olsson JJ, 11 December 1990)
It is for these reasons that I find the accused guilty on the first count of the Information.
It follows from my findings in relation to count one that, but for the allegation of harm in counts two, three and four, the result will be the same. Count three on the Information contains an allegation that the dangerous driving caused “serious harm” to Ms Kerr.
The evidence in support of that allegation was that Ms Kerr suffered a fracture of the pedicles of C2, a right tibial fracture which required internal fixation with an intramedullary nail and abdominal wall contusions. For the purpose of the offence serious harm is defined in s 21 of the Act to mean:
serious harm means—
(a)     harm that endangers a person's life; or
(b)     harm that consists of, or results in, serious and protracted impairment of a physical or mental function; or
(c)     harm that consists of, or results in, serious disfigurement.
Ms Kerr said that after the collision she had immediate surgery the next morning when a rod was inserted into her leg. As a result of the C2 fracture in her neck she was required to wear a brace for some months. She spent a period of approximately two weeks in hospital and as at the date of the trial was continuing to receive medical and physiotherapy treatment for ongoing residual problems. I find therefore that Ms Kerr did suffer serious harm within the meaning of the section.
Ms Smith suffered a right mid-shaft clavicular fracture and soft tissue injuries, bruising and grazing. Mr Wright suffered from lacerations and abrasions and soft tissue injuries. I find therefore that both Ms Smith and Mr Wright suffered “harm” as alleged in count two and count four respectively.
It follows that I find the accused guilty on counts two, three and four of the Information.
I turn now to consider the last count on the Information which is the offence of leaving an accident scene after causing death by careless driving.
Count 5: Leaving Accident Scene after Causing Death by Careless Driving
The offence with which the accused is charged in count five on the Information is created by s 19AB(1) of the Act which provides that:
19AB—Leaving accident scene etc after causing death or harm by careless use of vehicle or vessel
(1)     A person who—
(a)drives a vehicle or operates a vessel without due care or attention; and
(b)by that conduct, causes the death of another; and
(c)fails to satisfy the statutory obligations of a driver of a vehicle or an operator of a vessel (as the case may be) in relation to the incident,
is guilty of an offence.
Maximum penalty:
(a)     where a motor vehicle or motor vessel was used in the commission of the offence—
(i)for a first offence—imprisonment for 15 years and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 10 years or such longer period as the court orders;
(ii)for a subsequent offence—imprisonment for life and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 10 years or such longer period as the court orders;
(b)     where neither a motor vehicle nor motor vessel was used in the commission of the offence—imprisonment for 7 years.
The statutory obligations of a driver for the purpose of the offence contrary to s 19AB(1) of the Act are those obligations set out in s 43 of the Road Traffic Act 1961 (SA) (“the RTA”). Section 43 of the RTA states:
43—Duty to stop, give assistance and present to police where person killed or injured
(1) The driver of a vehicle involved in an accident in which a person is killed or injured must—
(a) immediately after the accident—
(i) stop the vehicle; and
(ii) give all possible assistance; and
(b) not more than 90 minutes after the accident, present himself or herself to a police officer at the scene of the accident or at a police station for the purpose of providing particulars of the accident and submitting to any requirement to undergo a test relating to the presence of alcohol or a drug in his or her blood or oral fluid.
It follows that the elements of the offence created by s 19AB(1) of the Act which the prosecution must prove beyond reasonable doubt are that the person:
1drives a vehicle;
2without due care or attention;
3the manner of driving is a substantial cause of the death of another; and,
4fails to satisfy the obligations imposed by s 43 of the RTA.
The elements of the offence created by s 43 of the RTA which the prosecution must prove beyond reasonable doubt are that:
·the driver of a vehicle involved in an accident;
·in which a person was killed or injured;
·failed to stop and give all possible assistance; and,
·failed to present himself to a police station or at the accident scene to a police officer within 90 minutes of the accident.
The obligation cast upon the driver under s 43 of the RTA arises then only if the driver is “involved in an accident”. The meaning of “involved” for the purpose of that section is not defined in the legislation. I therefore intend to give the word “involved in” its ordinary English meaning. The Macquarie Dictionary[50] describes “involved” to mean:
To cause to be inextricably associated or concerned, as in something embarrassing or unfavourable.
To implicate, as in guilt or crime, or in any matter or affair.
[50] The Macquarie Dictionary 2^nd Revised Edition.
In my view the finding of guilt against the accused on the first four counts involves the inevitable finding that the accused was connected by participation as an aider and abetter in the offences committed by Mr Fenney.
I find therefore that he was also a driver of a vehicle involved in the accident in which a person was killed and three persons injured. I find that the accused did fail to stop and give all possible assistance and he did fail to present himself to a police station within 90 minutes of the accident. In light of my finding that the accused participated at least for a time in racing with Mr Fenney on Torrens Road at high speed, he is also a person who drove his vehicle without due care and attention and by that conduct caused the death of another. That finding too arises as a result of the finding of guilt of the accused as an accessory to the offence of dangerous driving by Mr Fenney. I therefore find the accused guilty as charged on count five.