R v Taylor No. Sccrm-98-134 Judgment No. S6735
[1998] SASC 6735
•19 June 1998
R v TAYLOR
Trial by Judge Alone
Duggan J
The accused is charged with the offence of causing death by dangerous driving contrary to s19A of the Criminal Law Consolidation Act, 1935. Originally he was charged with an alternative count of manslaughter by omission arising out of the failure to stop his vehicle and render assistance after colliding with the deceased. However I ruled that there was no case to answer on the manslaughter charge and the trial proceeded on the remaining count of causing death by dangerous driving. There is very little dispute as to the facts of the matter. The real controversy as between the prosecution and the defence is related to the inferences which might be drawn from the facts.
The deceased was knocked down by a vehicle driven by the accused while he was walking along Womma Road, Penfield some time after midnight on 14th September 1997. He had been to the house of a friend at Davoren Park and had apparently decided to walk home to Virginia. His body was found at the side of Womma Road about 200 metres east of the intersection with Argent Road.
It is not in dispute that the deceased was struck by a vehicle driven by the accused, who was at the time, returning from a fishing trip with his friend Richard Corbett. The accused did not stop at the time of the accident and he has been charged with a further offence in the Magistrates Court, namely, failing to stop after an accident contrary to s43 of the Road Traffic Act, 1961. However the accused contacted the police later in the morning and he was charged with these offences.
The statement which the accused made to his solicitor was handed to the police and it was tendered as part of the prosecution case at the trial. According to the accused he went with his friend Mr Corbett to Swan Reach on 13th September 1997. He was driving his car which was a Sigma Sedan, 1979 model. He said it was in good condition. While he and his friend were at Swan Reach it started to rain heavily and they decided to leave for home at about 10.00 pm. He said that he and Mr Corbett drank some beer during the day. He said that they shared about 12 cans between them and he estimated that he drank six cans of beer during the day, the last being at approximately 9.30 pm.
According to the accused he drove along Womma Road on the way to his home at Burton. He said it was raining at the time. Ten or fifteen seconds after a car passed him going in the opposite direction he heard a loud bang on the front of his car and the windscreen shattered. He realised he had hit someone on the road. He said he did not see the person before the collision. He said his speed at the time would have been about 85 kilometres per hour. The maximum speed permitted along this section of the road is 100 kilometres per hour.
According to the accused’s statement he stopped a little way along the road. He said he thought he had killed the person and it did not occur to him that the person would still be alive and that it was important for him to give assistance. He said he panicked and left the scene.
Upon his return home he told his girlfriend what had happened. Later he heard a news report which stated that a 20 year old man had been killed. Later still he went to a telephone box and rang the Salisbury Police Station. After explaining what had happened two police officers came to his home. The police arrived at his house at about 10.30am.
Senior Constable de Dear examined the scene of the accident. He arrived there at 7.00am on 14th September. The road was very wet and there were pools of water on the gravel shoulders. The deceased was lying partly on the gravel shoulder and partly on the grass which leads to the fence line. The carriageway at this location on Womma Road is bitumen. It was in good condition at the time of the inspection. The road is divided into two traffic lanes by a painted white centre line. A fog line is painted near the edge of the bitumen carriageway. The road runs in a roughly east-west direction. The deceased was lying on the side of the road adjacent to the southern carriageway which is 3.76 metres wide. The registration sticker from the accused’s car was lying near the body, although I accept his assertion that he was not aware of this at the time he rang the police. An inspection of the accused’s motor vehicle revealed moderate damage to the left front headlight, bonnet area and the left side windscreen pillar. Constable de Dear fixed a very approximate point of impact on the fog line on the southern carriageway.
The time of the accident cannot be fixed with precision. However Constable Brinkley, who was on mobile traffic duty that evening, said he travelled along this section of road at about 12.11am and saw a man walking along the edge of the bitumen in the direction of Argent Road, although the sighting took place some distance back near Andrews Road. It is probable that the pedestrian was the deceased. At this time the road surface was wet and slippery. There was a fine misty rain and the sky was overcast. According to Constable Brinkley visibility was down to about 500 metres.
Anthony Manuel, who lives in the area, said he and his girlfriend were driving in a westerly direction along Womma Road at about 12.45am on 14th September. He said that when he was about 100 metres east of the intersection with Argent Road he saw a shoe lying in the centre of the westbound traffic lane and glass scattered around the shoe. There were no shoes on the body at the time it was discovered; they were lying nearby. Mr Manuel said that when he saw the shoe it was “raining very heavily” and he said that with his lights on high beam he could see only about 300 metres ahead.
I find that the accident took place sometime between 12.11am and 12.45am. It is apparent that the weather conditions worsened during this period and I accept that at the time of the accident visibility was very poor due to the mist and rain. There was no street lighting or natural light. On the northern side of the road there was a long line of tall trees.
I also find that the deceased was walking along the bitumen of the southern carriageway and towards the outer edge of the bitumen at the time of the accident. He was walking towards Argent Road and in the same direction as the accused’s car was travelling. It is clear that the accused was travelling on the correct side of the road. Dr James said in evidence that the active component of cannabis was present in the blood sample taken from the deceased. There is a possibility that the drug may have resulted in the deceased not taking as much care as he might otherwise have done, but it cannot be taken any further than that. It is also of some significance that there were large pools of water along the gravel verge and this might have led the deceased to walk on the bitumen instead of the verge. The deceased was wearing black clothing on both the upper and lower parts of his body.
The prosecution conceded that the only basis for a finding that the accused drove in a manner dangerous to the public is the assertion that he failed to keep a proper lookout.
In his summing-up in R v Duncan 11 SASR 592 at 593 Napier CJ explained the nature of driving in a manner dangerous to the public by distinguishing it from driving without due care. He told the jury that the latter category of driving covered any material departure from the high standard of care which is due by anybody who drives a motor vehicle. He continued:
“It is the standard which gives a civil right of action for damages; but, over and above that, there is the more serious offence of driving in the manner alleged in the information in this case, namely, ‘driving in a manner dangerous to the public’. I think that the distinction between these two offences is best explained by pointing out to you that all - or at any rate most - of us are liable at times to do things that we ought not to do, and to leave undone things that we ought to have done. When we use the public highway, we must expect to meet people like ourselves - people who are only human beings - with the human tendency to depart, at times, from the full standard of care and skill. That you may regard as negligence - ‘driving without due care and attention’ - but, nevertheless as an ordinary ‘risk of the road’. If it is a case of ‘You today, and me tomorrow’, we have to accept the risk as one of the ordinary incidents of modern life. If we live in an age of aeroplanes and fast-moving traffic, we have to take things as they are - the thick with the thin, and you the pedestrian today and tomorrow the driver, are to say where the line should be drawn between a mere lapse from due care and attention and conduct which is plainly blameworthy.
If it is the sort of thing that any of us might be liable to do - although we might be sorry for it afterwards - you may regard it as driving without due care and attention, but, nevertheless, as an ordinary - and in one sense a necessary - risk of any road on which vehicles are driven by ordinary people like ourselves - people who mean well, but sometimes make mistakes. But over and above that, it must be a matter of common knowledge that there are some people who - at times - impose on other users of the road a risk which is by no means a fair or necessary risk of the road. They drive in a manner which imposes upon other users of the road a risk which any reasonable person, in the situation of the driver, ought to recognise as a real danger to the public. That, gentlemen, is what I think this information means, when it charges the accused with driving in a manner dangerous to the public. It refers to the sort of risk which is in no sense an ordinary or necessary risk of the road, and to a manner of driving which is treated as a fairly serious crime.”
Bray CJ discussed the same distinction in The Queen v Mayne 11 SASR 583 at 585 when he said:
“By empowering the jury to acquit of causing death by dangerous driving and to convict of driving without due care or attention, it must have contemplated that not all departures from due care and attention, even if they cause death, are necessarily to be classified as dangerous within the meaning of s14.”
There is no doubt that in some cases a failure to keep a proper lookout can, by itself, result in dangerous driving. However there are other cases in which, if it is the only complaint about the driving, it is more indicative of the unfortunately common lapses of attention which occur from time to time among drivers of motor vehicles and which fall into the category of careless driving as opposed to driving which is serious enough to be considered as criminal behaviour. (See eg Bliss v R (1993) 173 LSJS 255 at 263).
In the present case I must proceed on the basis that the accused was not affected by alcohol, that he was not exceeding the speed limit and that he was driving on the correct side of the road. Nor is there any evidence to suggest that he was in the course of an unusual or dangerous manoeuvre at the time of the accident. The police officer who examined the accused’s vehicle formed the opinion that it was in good condition and he could find nothing mechanically wrong which would have contributed to the accident. Furthermore there is evidence to explain why the accused did not see the unfortunate victim until the moment of the collision. Visibility was very poor, there was no lighting apart from that provided by the headlights of the accused’s vehicle, the deceased was dressed in black and he was walking on the bitumen surface and on the same side of the road as that on which the accused was travelling. There is every reason to think that the deceased was intent on battling the elements as he was making his difficult way home and that he may not have been as concerned for his own safety as might otherwise have been the case.
I have reached the conclusion that the accused’s manner of driving could not be placed in the serious and criminal category required in order for him to be found guilty of causing death by dangerous driving. On the other hand the very fact of the poor driving conditions called for extra care and an increased lookout so as to enable the accused to avoid the unexpected. I do not think that the accused was driving entirely within the limitations imposed by the conditions to which I have referred and in my view there was some departure from the standard of defensive driving required by those circumstances. I regard this departure from appropriate standards as constituting driving without due care.
For these reasons the accused will be found not guilty of causing death by dangerous driving, but guilty of driving without due care.
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