R v Uduma
[2013] SASCFC 2
•7 February 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v UDUMA
[2013] SASCFC 2
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice White)
7 February 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES - OTHER MATTERS - QUALIFICATION OF EXPERT WITNESS
Appeal against conviction – the defendant was charged with causing serious bodily harm by dangerous driving, contrary to section 19A(3) of the Criminal Law Consolidation Act 1935 (SA) – following a trial by a Judge alone, the defendant was convicted – where a collision occurred on the incorrect side of the road for the defendant’s direction of travel – where the victim suffered serious harm – where a primary issue at trial was whether the defendant’s driving was dangerous – on appeal, the defendant advanced a number of complaints – whether there was a reasonable hypothesis consistent with innocence – whether the verdict was unsafe and unsatisfactory.
Held per Gray J (Vanstone and White JJ concurring): Appeal dismissed – the evidence given by police officers in respect of average reaction times was within their expertise, admissible and available to be used by the Judge – the Judge did not misuse the evidence about average reaction times – the Judge did not misuse the evidence given by a police officer on the topic of headlights – it was open to the Judge to reject the defendant’s submission that the collision was caused by the glow of headlights on the tree canopy – all of the calculations made by the Judge were open on the evidence – the Judge was entitled to consider possible scenarios regarding the circumstances of the collision, even those not advanced by the defendant – the hypothesis that the collision occurred because the defendant was blinded or distracted by the headlights of the victim’s vehicle and swerved into the path of the victim’s vehicle was not a reasonable hypothesis – there was no miscarriage of justice – the verdict returned by the Judge was open to him and was the correct verdict.
Held per White J: It was appropriate for the police officers with expertise in accident reconstruction to rely upon the authoritative data published by others concerning average reaction times of drivers.
Criminal Law Consolidation Act 1935 (SA) s 19A(3); Australian Road Rules (SA) r 132, referred to.
Kroon v The Queen (1991) 55 SASR 476; R v Cain (2011) 111 SASR 301; R v Uduma [2012] SADC 116; R v Noll [1999] 3 VR 704, considered.
R v UDUMA
[2013] SASCFC 2Court of Criminal Appeal: Gray, Vanstone and White JJ
GRAY J.
This is an appeal against conviction.
The defendant and appellant, Udo Idika Uduma, was charged with the offence of causing serious bodily harm by dangerous driving contrary to section 19A(3) of the Criminal Law Consolidation Act 1935 (SA). It was alleged that the defendant, between 3 and 6 December 2010 at Charleston drove a motor vehicle in a manner which was dangerous to the public and thereby caused serious bodily harm to Bettina Blefari.
The defendant pleaded not guilty and elected for trial by judge alone before a judge of the District Court. On 17 September 2012, the defendant was convicted.
Shortly before midnight on 3 December 2010, Mrs Coscia, formerly Ms Blefari, was driving her Alfa Romeo motor vehicle north on Onkaparinga Valley Road between Woodside and Charleston. The road was familiar to her. She had lived in the area since childhood and drove daily on this particular road to Adelaide.
Mrs Coscia had been in Adelaide that day, shopping and then having dinner. She was driving towards Charleston, on her way home to her parents’ house in the outskirts of Lobethal. As she passed the turn-off to Lobethal, known as Quarry Road, she drove towards the crest of a low hill.
The roadway of the Onkaparinga Valley Road comprised two carriageways, one for northbound traffic and one for southbound traffic. The road surface was sealed bitumen in good condition. The night was dry and there was clear vision. The road was straight for both directions of travel in the approach to the crest.
The defendant had been at work that day at Woodside. After work, he travelled in his Jeep Patriot motor vehicle to Charleston where he met a friend at the hotel. He left Charleston intending to drive towards Adelaide. He drove south on the Onkaparinga Valley Road and approached the crest of the hill earlier referred to. As he approached the crest travelling south, Mrs Coscia approached the crest travelling north.
At a point between about 20 metres and 50 metres south of the crest, the vehicles collided head-on. Both cars had been travelling at about 90 to 100 kilometres per hour. The impact occurred on Mrs Coscia’s correct side of the road; that is, on the western side of the Onkaparinga Valley road. The front left of the defendant’s vehicle collided with the front left of Mrs Coscia’s vehicle. The collision occurred in the middle of her carriageway. It follows that the defendant’s vehicle was entirely on its incorrect side of the road and positioned very close to the western kerb.
Both vehicles were extensively damaged. Both the defendant and Mrs Coscia suffered severe personal injuries. It was accepted at trial that Mrs Coscia, as a result of the collision, suffered “serious harm” within the meaning of section 19A(3) of the Criminal Law Consolidation Act.
The Judge correctly identified the elements of the offence and the relevant legal principles to be applied. He noted that it was necessary that the act of driving had to be a willed or conscious act. This was not in dispute. The defendant readily admitted this fact. The question then arose as to whether the driving was dangerous and this was to be judged against an objective standard, irrespective of whether the defendant intended to drive that way or apprehended that he was doing so. The Judge specifically addressed the relevant authorities – of Kroon[1] and Cain.[2]
[1] Kroon v The Queen (1991) 55 SASR 476.
[2] R v Cain (2011) 111 SASR 301.
At trial, the parties agreed that both vehicles were in reasonable condition before the collision and that there was nothing in the condition of either vehicle that would have caused or contributed to the collision. It was agreed that the headlights of both vehicles were destroyed in the collision and that no testing could be carried out. It was agreed that the defendant, at the time of the collision, was the holder of a driver’s licence issued in Nigeria and that the road laws in Nigeria required drivers to drive on the right-hand side of the roadway.
The prosecution led evidence in the trial from Mrs Coscia, a passing motorist who stopped at the scene, and two police officers, Brevet Sergeant Liebich and Senior Sergeant Kuchenmeister, from Major Crash Investigation who attended the scene at different times. A scale plan of the scene and photographs taken soon after the collision were tendered as part of the prosecution case. The defendant gave evidence, but called no other evidence in his defence.
Mrs Coscia said it was a warm and balmy night. She was driving at between 90 and 100 kilometres per hour. She was driving in the western and northbound lane. Her headlights were on. She was unsure whether her headlights were on high beam as she approached the crest. She said she would have dipped her headlights to low beam had she seen oncoming headlights. However, during cross-examination, she appeared to accept that her headlights may have been on high beam.
Mrs Coscia said she suddenly became aware of a vehicle directly in front of her. She said this car was traversing the crest. At this time Mrs Coscia was still approaching the crest. She did not observe the other vehicle swerve. She did not recall whether she took any evasive action and did not remember the impact. She said that “it happened in a split-second, it all happened very quickly”.
The evidence of Brevet Sergeant Liebich established that the point of impact was entirely on Mrs Coscia’s side and in the middle of the western carriageway. It was a head-on collision. The impact was between the front left of the defendant’s vehicle and the front left of Mrs Coscia’s vehicle. This caused both vehicles to rotate. The defendant’s vehicle finished completely off the bitumen surface to the west of the carriageway. The investigation of the police disclosed no indication that the defendant’s vehicle had swerved before the collision. Senior Sergeant Kuchenmeister’s evidence further confirmed that the headlights of a vehicle the approximate size of the Alfa Romeo as it drove towards the crest would be directed generally towards the road’s surface.
The evidence of the plan and the photographs depicted relevant road markings. It was not in dispute that the speed limit applicable to both vehicles at the relevant time was 100 kilometres per hour.
Both police officers gave evidence with respect to their expertise as motor vehicle collision investigators. Their expertise in that respect was not challenged. Both gave evidence about average reaction times. This aspect of their evidence was objected to as being a matter of expert testimony outside both officers’ experience or expertise. Brevet Sergeant Liebich gave evidence of his review of the literature on the topic and, in particular, literature that extracted data and literature that was well accepted by crash investigators throughout Australia. Senior Sergeant Kuchenmeister gave evidence of his review of literature and also his involvement in simulated motor vehicle crash testing and the collection of data both in New Zealand and Australia.
It is apparent that the Judge accepted the evidence of Mrs Coscia. Counsel for the defendant pointed out that there was no explicit finding of acceptance. It is, however, implicit in the Judge’s reasons that her evidence was accepted. It is also apparent that the Judge accepted the evidence of the investigating police officers. In doing so, the Judge recognised that some aspects of that evidence were of limited value.
The defendant’s evidence was demonstrably unreliable. The defendant gave evidence that he was driving on his correct side of the road both in evidence-in-chief and in cross-examination and said that he had maintained a straight course and did not change direction. During his evidence, he asserted that he had been affected by the sudden glare of the headlights of Mrs Coscia’s vehicle. At one point, he said that after this occurred; he did not know what happened. The difficulty that arose was that his evidence was plainly incorrect. On the appeal, defence counsel accepted that these aspects of the defendant’s evidence were unreliable. This conclusion was inescapable once it was accepted that the collision occurred when the defendant’s vehicle was entirely on its incorrect side of the road.
The evidence of Mrs Coscia confirmed that she was confronted by the defendant’s vehicle driving directly at her vehicle. There was no evidence that confirmed or supported a suggestion that there had been any swerve by the defendant into the path of Mrs Coscia’s vehicle.
The defendant, being aware of the approach of a vehicle from the other direction, traversed the crest on the wrong side of the road without reduction of speed, directly into the path of the oncoming vehicle. He did so against the clear markings on the road as this was a section of the roadway where he was obliged to keep his vehicle to the left of the centre line and not to cross to the incorrect side of the road. The continuous white line on the road is designed to indicate to a driver that there would be a danger if that driver were to cross that white line because of obstructions to view.[3]
[3] See, rule 132(2) of the Australian Road Rules (SA), which provides:
A driver on a road with a dividing line must drive to the left of the dividing line, except as permitted under rule 134 or 139 (2).
Offence provision.
Note—
Rule 134 deals with driving to the right of the dividing line to overtake another vehicle, to enter or leave a road, or to move from one part of the road to another. Rule 139 (2) deals with driving to the right of the dividing line to avoid an obstruction.
The effect of this subrule, in relation to continuous dividing lines, is as follows:
•in the case of a dividing line that is only a single continuous dividing line, or that is a broken dividing line to the right of a single continuous dividing line, a driver may only drive to the right of such a line in the circumstances set out in rules 134 (3) and 139 (2) (as supplemented by rule 139 (3));
•in the case of a dividing line that is a single continuous dividing line to the right of a broken dividing line, a driver may only drive to the right of such a line in the circumstances set out in rules 134 (2), 134 (3) and 139 (2);
•in the case of a dividing line that is 2 parallel continuous dividing lines, a driver may only drive to the right of such a line in the circumstances set out in rule 139 (2) (as supplemented by rule 139 (3)).
The defence case at trial, as advanced during final address, was that the prosecution had not excluded that the defendant had been blinded or distracted by the other vehicle’s lights on high beam and, at that moment, swerved into the path of the other vehicle. To my mind, this is pure speculation. It was unsupported by evidence and was not a reasonable hypothesis.
As mentioned earlier, it was suggested that the Judge had received evidence about average reaction times outside the expertise of the crash investigators. I do not consider there to be any substance in this submission. As noted above, both police officers were accepted as having expertise as crash investigators. Both were familiar with relevant literature addressing the issue of reaction times and with its wide use in Australia. As expert crash investigators, they were well able to access such material and add to their expertise through the consideration of the contents of that literature. At trial, counsel for the defendant submitted that something more was required and instanced the conducting of experiments or tests. Counsel for the defendant did not seek to challenge the evidence about the literature, its wide availability and use, or the broader effect of its contents. Further, Senior Sergeant Kuchenmeister gave evidence of his involvement in the conducting of tests, both in Australia and overseas. This aspect of his evidence does not appear to have been the subject of any comment or submission during the trial by counsel for the defendant. I consider that the evidence as to average reaction times was admissible and available to be used by the Judge in his assessment of aspects of the evidence.
The Judge in the course of his reasons observed:[4]
Even if both vehicles were only travelling at 90 kilometres per hour, Mr Uduma’s vehicle would have taken between 30 and 33 metres (T 108) to cross to the western side of the road, not allowing for a reaction time. If the ‘standard’ reaction time of 1.5 seconds is applied, at 90 kilometres per hour the vehicles would have travelled a further 37.5 metres. Even if Mr Uduma had an exceptionally quick reaction time of, say, one second, the vehicle would have travelled 25 metres.
Counsel for the defendant complained about the reference to an “exceptionally quick reaction time” and submitted that there was no evidence to support this finding. It was said, in particular, that the Judge had no evidentiary basis on which to conclude that such a reaction time would be exceptional. I do not consider that the Judge was making a specific finding. He was postulating a hypothetical situation. In doing so, he was adopting a common sense approach to the common human experience of reaction times. The Judge’s approach was further justified by the evidence properly admitted as to an average reaction time. The point being made by the Judge was that even if the defendant did react within one second, his vehicle would have travelled 25 metres during that interval of time.
[4] R v Uduma [2012] SADC 116, [68].
The Judge noted that the evidence related to average reaction times and, as such, could be suspected to vary from person to person and circumstance to circumstance. I do not consider that the Judge misused this evidence. The evidence in any event was not germane to the primary issue in the trial. That issue was whether the defendant’s conduct of driving his vehicle wholly on the incorrect side of the road in defiance of road markings while traversing the crest and driving into a head-on collision with Mrs Coscia’s motor vehicle constituted dangerous driving.
It was submitted that the Judge had misused evidence given by Senior Sergeant Kuchenmeister on the topic of headlights. The Senior Sergeant’s evidence concerned the angle at which the lights of a vehicle would shine when travelling uphill; that is, in the present case, towards the crest for a car travelling north. The Senior Sergeant’s evidence was directed to the headlights of a small motor vehicle. The Judge used this evidence with reference to the Alfa Romeo driven by Mrs Coscia. I do not consider that this evidence was misused. The Judge specifically noted that there was no evidence that related to the headlights of an Alfa Romeo. In particular, it was open to the Judge to use the general evidence relating to the lights of a small vehicle as being of some probative value in regard to the angle at which the lights of the Alfa Romeo could have been expected to illuminate.
Complaint was made that the Judge had failed to give adequate weight to the defendant’s evidence that he may have been distracted by the glow from the headlights of the Alfa Romeo on the canopy of the trees overhanging the road before the full glare of the headlights was upon him. The Judge, in rejecting the submission on this topic, made the point that on the defendant’s evidence, he only felt the impact of the lights when the full direct glare of the headlights was on him and that, when this occurred, he held his line on the road. It was open to the Judge to reject the suggestion that, in some way, the collision was caused by the glow of lights on the tree canopy.
Photographs exhibited in the trial disclosed an incomplete tree canopy that could be expected to reflect some glow of a headlight. However, the tree canopy was only partial and did not cross the entire carriageway. It is difficult to contemplate that the glow of the lights on the tree canopy could have distracted the defendant in any material way. Common experience would suggest that the glow and the increase in that glow would be a clear indicator to the defendant that he was about to be confronted by an oncoming vehicle and face the possibility of headlight glare, including the possibility of high beam headlight glare. A prudent driver would adjust the manner of driving to prepare for these matters, in particular for the possibility that the driver might be confronted by direct high beam headlight glare. In any event, the defendant’s evidence was that he only felt the impact of the lights when the full direct glare was on him.
Attention was drawn to the fact that the Judge had made several mathematical calculations based on Senior Sergeant Kuchenmeister’s evidence concerning the possibility that the defendant had swerved shortly before impact. In particular, it was suggested that the Judge had misused the evidence of Senior Sergeant Kuchenmeister in rejecting the defence submission that the defendant had swerved to the right. It was complained that these calculations were dependent on the measure used for the coefficient of friction.
This submission should be rejected. It is to be recalled that the evidence of the defendant was that at all times he maintained a straight course. He did not give evidence of any swerve, change of course or straightening up. It appears that this suggestion came from defence counsel when faced with the fact that the defendant’s account was plainly wrong. The evidence, as discussed above, established that the vehicles collided in the middle of Mrs Coscia’s carriageway with the defendant’s vehicle completely on the wrong side of the road. It is also to be recalled that Mrs Coscia’s evidence was that she was confronted with the defendant’s vehicle coming straight towards her. It was common ground at trial that the impact was head-on.
Senior Sergeant Kuchenmeister’s evidence provided some confirmation to the defendant’s account that he had driven in a straight line. The Senior Sergeant gave unchallenged evidence as to the average coefficient of friction. He postulated a range and the Judge chose the factor most favourable to the defendant. Many calculations were made by the Judge. All were open on the evidence.
Although it is not possible to make definitive findings on the question of how long the defendant’s vehicle had been on the incorrect side of the road, the Judge’s general findings were open on the evidence. In particular, it was open to the Judge to conclude that the defendant was completely on the incorrect side of the road at the time Mrs Coscia first saw his vehicle and that he had not engaged in any swerving movement. To my mind, it is a real possibility that at some point before reaching the crest, the defendant had moved to travel on the incorrect side of the road. His belief may have been that he was on the correct side, but in this respect he was mistaken.
Earlier in these reasons, I have discussed the scenario of the defendant first swerving to the right. It was suggested that this was a hypothesis consistent with innocence. The cause of the swerve to the right was suggested to be distraction from high beam headlights. It was complained on appeal that the Judge erred in rejecting this scenario as a reasonable possibility. As discussed above, in my view, the Judge did not err in this respect.
I turn now to address the scenario considered by the Judge, namely that the defendant “first swerved right towards the ‘threat’, and then back to the left to straighten up”. It was contended that neither the defendant nor his counsel at trial had advanced this scenario as an explanation of how the collision might have occurred. In my view, the Judge was entitled to consider possible scenarios, even those not advanced by the defendant.
It was contended that the combination of the errors made by the Judge have resulted in a risk of a miscarriage of justice. I do not consider that the complaints have been made out. In any event, if error were identified, the case against the defendant on his own evidence was overwhelming. He collided with Mrs Coscia’s vehicle head-on to the south of the crest when his vehicle was completely on the wrong side of the road. His evidence offered no adequate explanation. The hypothesis of swerving because of glare is no more than speculation. There was no evidence to support that hypothesis.
Finally, it was submitted that it would be open to this Court to substitute an alternative verdict of guilty of the offence of aggravated driving without due care. To support this contention, counsel for the defendant drew attention to what he said was a decision or error made by the defendant in the “agony of the moment”. This submission faced the difficulty earlier identified that it was the defendant’s evidence that he did not swerve and that when confronted by the headlight glare, he steered a straight course. The circumstance of the defendant’s vehicle being entirely on the wrong side of the road as it traversed the crest and on a course for a head-on collision with an approaching motorist in defiance of clear road markings and without any attempt to reduce speed fully justified the verdict of guilty of dangerous driving. The admitted injuries confirm that that dangerous driving caused serious harm. The verdict returned by the Judge was not only open to him, it was a verdict overwhelmingly supported by the evidence and, in my view, it was the correct verdict.
Conclusion
I would dismiss the appeal.
VANSTONE J. I would dismiss the appeal. I agree with the reasons of Gray J.
WHITE J. I agree that the appeal should be dismissed for the reasons given by Gray J.
I add the following in relation to the appellant’s complaint regarding the trial Judge’s admission and use of the police officers’ evidence as to reaction times.
It is important first to note the context in which the issue arose. The defence case at trial was that the prosecution had not excluded as being reasonably possible that the appellant had made a last moment’s swerve into the path of Mrs Coscia’s vehicle because he had been blinded by her headlights or because of the agony of the moment.
This hypothesis seems implausible and in any event is not supported by the evidence of either driver, each of whom described travelling straight ahead in the moments immediately preceding impact.
Furthermore, the impact occurred some 20‑50 metres south of the crest of the hill over which the appellant had travelled. It is not possible to be precise as to when Mrs Coscia’s headlights would have become directly visible to the appellant but, on any view, it must have been a very short distance before the appellant reached the point of impact, probably in the order of 50 metres.
The lower end of the appellant’s estimate of his speed, 90 kph, is equivalent to 25 metres per second. This means that it would have taken the appellant about two seconds to travel the distance of approximately 50 metres between first seeing Mrs Coscia’s headlights to the point of collision. In this period, on the alternative hypothesis, the appellant had to have been blinded by the headlights, reacted, swerved onto his incorrect side of the road, and then straightened his vehicle so that both vehicles were virtually head on, but slightly offset to the right, at the point of impact. Such a scenario is highly implausible especially given the required reaction time.
In that context, it suited the appellant’s purpose for his reaction time to be as short as possible and even shorter than the one or one and a half seconds to which the two police officers, Messrs Kuchenmeister and Liebich, referred in their evidence. He submitted that it had been inappropriate for the trial Judge to receive and act on the police officers’ evidence concerning reaction times.
The appellant submitted that neither police officer was qualified to give expert evidence regarding reaction times. He contended that the reaction times of drivers generally was a matter of specialised knowledge and that neither police officer had demonstrated that they had the relevant expertise. Their evidence as to reaction times was simply a recounting of what they had read in literature, something which could have been done by a non‑expert member of the community.
As it happened, each of Messrs Kuchenmeister and Liebich did have training and expertise in accident reconstruction. Mr Kuchenmeister referred to the training and courses he had undertaken in accident reconstruction, including his participation in, and completion of, specialist courses in New Zealand and in the United Kingdom. Mr Kuchenmeister also said that he had made a study of the literature concerning the reaction times of drivers and that he had used, in his calculation, the widely accepted figure of one and a half seconds. Mr Liebich’s formal training appears to have been less extensive than that of Mr Kuchenmeister but he too deposed to his participation in training courses involving accident reconstruction.
There was no request by trial counsel for a voir dire and the evidence concerning the expert knowledge of each police officer did not extend to greater particularity.
Contrary to the appellant’s submissions, it was not necessary for the police officers to have carried out tests themselves to ascertain average reaction times. Given their expertise, and especially in the case of Mr Kuchenmeister, they were entitled to rely on the data published by other experts who had made a study of reaction times and whose work is regarded as authoritative. It is one of the skills of an expert to know whose studies and research may be regarded as reliable.
Ormiston JA expressed the principle in R v Noll[5] in the following passage:
As a matter of principle … experts can speak of many matters with authority if their training and experience entitle them to do so, notwithstanding that they cannot describe in detail the basis of knowledge in related areas. Professional people in the guise of experts can no longer be polymaths; they must, in this modern era, rely on others to provide much of their acquired expertise. Their particular talent is that they know where to go to acquire that knowledge in a reliable form.[6]
Similarly, Wigmore on Evidence states:
The data of every science are enormous in scope and variety. No one professional man can know from personal observation more than a minute fraction of the data which he must every day treat as working truths. Hence a reliance on the reported data of fellow scientists, learned by perusing their reports in books and journals. The law must and does accept this kind of knowledge from scientific men. On the one hand, a mere layman, who comes to court and alleges a fact which he has learned only by reading a medical or a mathematical book, cannot be heard. But, on the other hand, to reject a professional physician or mathematician because the fact or some facts to which he testifies are known to him only upon the authority of others would be to ignore the accepted methods of professional work and to insist on finical and impossible standards.[7]
(Emphasis in the original)
Thus, it was appropriate for the police officers, in particular Mr Kuchenmeister, bearing in mind his more extensive study and training, to rely upon the authoritative data published by others concerning average reaction times of drivers.
[5] [1999] VSCA 164; [1999] 3 VR 704.
[6] Ibid at [3]; 705.
[7] J H Wigmore, Evidence in Trials at Common Law (Chadbourn rev, 1970) at 919.
It may have been preferable for the two police officers to identify the particular studies which they had undertaken with respect to reaction times, and the particular literature upon which they relied, but nothing turns presently on their failure to do so. As already noted, the appellant did not at the trial seek a voir dire about these matters.
Finally, it is to be noted that the evidence which the two police officers gave as to average reaction times is consistent with that commonly heard by the courts. In fact, it is not unknown for courts to hear evidence that the average reaction time of a driver who is not expecting to have to respond to an emergency may be longer than one or one and a half seconds.
As I have said, I would dismiss the appeal.