R v Uduma
[2012] SADC 116
•17 September 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v UDUMA
Criminal Trial by Judge Alone
[2012] SADC 116
Reasons for the Verdict of His Honour Judge Chivell
17 September 2012
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
Head-on collision. Accused's vehicle on incorrect side of the road. Serious injuries sustained by complainant. Elements of the offence of causing serious bodily harm by dangerous driving proved beyond reasonable doubt. Verdict of guilty.
Criminal Law Consolidation Act 1935 s 19A(3), s 19B(3), s 19AAB, s 21; Road Traffic Act 1961 s 45; Evidence Act 1929 s 34, referred to.
R v R, R & R, LJ [2008] SASC 35; Robinson v R [1991] HCA 38; Stoten v R [2011] HCA 44; Harris v The Queen (1990) 55 SASR 321; R v Calides (1983) 34 SASR 355; R v Jaeschke (2007) 99 SASR 300; R v Pearse [2011] SASCFC 65; Kroon v R (1991) 55 SASR 476, considered.
R v UDUMA
[2012] SADC 116Introduction
Mr Uduma is charged with causing serious bodily harm by dangerous driving, contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (‘CLCA’). The particulars alleged are:
Udo Idika Uduma between the 3rd day of December 2010 and the 6th day of 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.
General Directions
The Supreme Court has stated that it is not necessary that I set out in these reasons all of the directions which a judge might give to a jury in a criminal trial.[1]
[1] R v R, R & R, LJ [2008] SASC 35
However, I remind myself of the following fundamental principles:
·the accused is entitled to the presumption of innocence - he is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt;
·the burden of proving guilt rests on the prosecution. There is no onus on the accused to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of the accused;
·the accused is under no obligation to give evidence. If he does not, no adverse inference may be drawn against him. If he does, he does not undertake any onus to prove or explain anything. That remains with the prosecution. His evidence is not to be discounted merely because he is the accused. That would deny him the presumption of innocence. His evidence should be assessed in the same way as that of the other witnesses;[2]
·even if the evidence of the accused is disbelieved completely, that does not bolster the prosecution case. It is as if he had not given evidence at all;[3]
·the fact that the accused has given evidence does not create a contest between the prosecution and defence versions of the events, the resolution of which excludes the issue whether the prosecution has proved its case beyond reasonable doubt;[4]
·proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or that there is a probability of guilt, is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient;
·each element of the offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict is ‘not guilty’.
[2] Robinson v R [1991] HCA 38, Stoten v R [2011] HCA 44
[3] Harris v The Queen (1990) 55 SASR 321 at 323
[4] R v Calides (1983) 34 SASR 355
Brief Facts
Just before midnight on Friday, 3 December 2010, Ms Blefari (now Mrs Coscia) was driving her Alfa Romeo motor vehicle in a northerly direction along the Onkaparinga Valley Road between Woodside and Charleston.
The road was familiar to her – she had lived in the area since childhood, and she drove on this particular road to Adelaide and return daily.
Mrs Coscia had been in Adelaide that day, shopping and then having dinner with her then-fiancé, now husband. She was driving towards Charleston, on her way home to her parents’ house, just outside Lobethal. She passed the turn-off to Lobethal on her left, which is known as Quarry Road, and approached the crest of a low hill.
Earlier that day, Mr Uduma had worked as an aged-care worker at a residential care facility at Woodside. After work, he drove his Jeep Patriot motor vehicle to Charleston, to meet a friend at the hotel there. After staying there a short time, he was driving back towards Adelaide, in a southerly direction, approaching the same hill.
Unfortunately, at a point somewhere between 20 and 50 metres south of the crest of the hill, the two vehicles collided head-on. Both cars had been travelling at between 90 and 100 kilometres per hour, so it is not surprising that the vehicular damage was extensive, and that both drivers were injured severely.
It is the prosecution case that Mr Uduma was driving on the incorrect side of the road prior to, and at the time of, the collision.
Elements of the Offence
The onus is on the prosecution to prove beyond reasonable doubt both of the following elements:
(1)that Mr Uduma drove his motor vehicle in a manner which was dangerous to the public;
(2)by that dangerous driving, he caused serious harm to Mrs Coscia.
As to the second element, Mr Boucaut SC, counsel for Mr Uduma, conceded that Mrs Coscia suffered serious harm. She suffered fractures of her left femur, right femur, left elbow, right hip, left tibia and the second, third and fifth metatarsal bones in her left foot. Each of these factures required surgical treatment. In addition, there were lacerations over her right knee, left knee and right forearm, which all required surgical treatment.
Following the collision, Mrs Coscia was treated at the scene, initially by ambulance officers, and later by an emergency physician, Dr Burke. It took some time to extract her from her car, and she was then transported by helicopter to the Royal Adelaide Hospital, where she remained until 26 January 2011.
Mrs Coscia later underwent lengthy rehabilitation treatment, and is still receiving treatment in various forms. She has ongoing pain, physical disability, psychological difficulty, and permanent scarring.
Section 19AAB and s 21 of the CLCA define ‘serious harm’ as including ‘harm that consists of, or results in, serious and protracted impairment of a physical or mental function’.
There is no doubt that Mr Boucaut’s concession in relation to the second element is appropriate in these circumstances.
As to the first element, the relevant authorities were referred to by Doyle CJ in R v Jaeschke[5] at [33-34]. His Honour wrote:
[5] (2007) 99 SASR 300
In McBride v The Queen (1966) 115 CLR 44 the High Court considered the meaning of driving in a manner dangerous to the public. In a passage often referred to with approval in later cases, Barwick CJ said (at 49-50):
“The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public, but the need for death or injury to a person to result from impact with a vehicle so driven may make that question unlikely to arise, though the possibility of its doing so must be acknowledged.”
In Jiminez v The Queen (1992) 173 CLR 572 the High Court referred with approval to this passage. The majority (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) said (at 579):
“The manner of driving encompasses "all matters connected with the management and control of a car by a driver when it is being driven": R v Coventry (1938) 59 CLR 633 at 639. For the driving to be dangerous for the purposes of s 52A there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention. Although a course of conduct is involved it need not take place over any considerable period. [Footnotes omitted.]”
The concept identified in these passages is clear enough, although its application to a given set of circumstances may require careful assessment.
It is the practice in this State for judges to direct juries in accordance with these principles. The form of the direction commonly given is based on a direction given by Napier CJ in R v Duncan, which appears as a note to the report of the decision in R v Mayne (1975) 11 SASR 583. There, Bray CJ said (at 585):
“Thus it is customary to distinguish between such departures from the proper standard of care as may be regarded as ordinary risks of the road, even if they would found a civil action, and such a manner of driving exposing other road users to such a risk as "any reasonable person in the situation of the driver ought to recognize as a real danger to the public" (Duncan's case). Moreover it is also customary and usual, and probably, in view of the provisions of s 14a, obligatory, to tell the jury of their power to convict of a lesser offence under that section and to invite them to consider in an ascending order of seriousness whether the manner of driving they find against the accused was not negligent at all or was such as to show merely that he was driving without due care or attention or such as to be dangerous to the public. If they are satisfied beyond reasonable doubt that it falls into the third category, they then have to consider further whether it caused the death alleged.”
(Footnote omitted.)
In R v Pearse[6], Sulan J, at [20], said:
The summing up must be considered as a whole. To constitute driving in a manner dangerous to the public, the prosecution must prove beyond reasonable doubt that the act of driving was such that a reasonable person in the situation of the accused would recognise the driving as dangerous, in that it involves a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public.
The trial Judge did not use that exact form of words in his direction to the jury. Nevertheless, his directions were clear and conveyed to the jury all of the elements referred to herein. I consider a jury would have been left in no doubt that in order to convict the appellant they had to be satisfied beyond reasonable doubt that the appellant’s driving and lack of care and attention must have been beyond a standard of care which is often observed in drivers and seen as an ordinary risk of the road. The jury were directed that the driving must be more serious and it must create a risk of injury which is over and above the ordinary risks of the road and which would be recognised as such by a reasonable person in the position of the accused. A jury would have understood that the driving must create a real risk to the public not a hypothetical or perceived danger.
Mrs Shaw’s complaint is that the trial Judge failed to consistently direct the jury that, for the elements of driving in a manner dangerous to the public to be made out, the jury must be satisfied beyond reasonable doubt, first, that the manner of driving was dangerous in that the driving subjected others who may be on the road to risks which are over and above the risks which exist in the ordinary course of driving and, secondly, that a reasonable person in the situation of the driver will recognise the driving as posing a real risk to the public. Mrs Shaw submits that, as to the second limb of the test, the Judge failed to direct the jury that the driving must be perceived by a person in the appellant’s position to amount to a real danger to the public.
In R v Hendriksen [2007] SASC 304, Doyle CJ, with whom Kelly J agreed, made it clear that there is no formula which is required for a trial Judge in directing the jury on what amounts to driving in a manner dangerous to the public. In my view, it should be made clear to the jury that the distinction between driving without due care and driving in a manner dangerous to the public is that due care occurs when people depart at times from the standard of a care and skill required of a driver on the road but, nevertheless, their driving would be regarded as coming within the ordinary risks of the road, whereas driving in a manner dangerous to the public requires that it be proved that a reasonable person in the situation of the driver ought to recognise the manner of driving creates a real danger to the public beyond the ordinary risks of the road.
[6] [2011] SASCFC 65
So, in order to prove the first element, the prosecution must demonstrate that the manner of driving was such a grave departure from the standard of care expected of a road user that it imposed a risk which any person in the position of the accused would recognise as a real danger to the public beyond the ordinary risks of the road.
This offence is created by s 19A(3) of the CLCA. Section 19B(3) provides that if I am not satisfied that Mr Uduma is guilty of the offence charged, I may bring in a verdict that he is guilty of a less serious offence to which that subsection applies. In this case, the less serious offence is aggravated driving without due care, contrary to s 45 of the Road Traffic Act 1961.
The distinction between the two offences is one of degree. Driving without due care is a departure from the standard of care expected of a reasonable driver in the position of the accused, but which is not so serious as to fit the criteria for driving in a manner which is dangerous to the public which I have already outlined.
Agreed Facts
The following facts are agreed between the parties pursuant to s 34 of the Evidence Act 1929:
(1)Mrs Coscia’s injuries and treatment, which I have already described.
(2)Both Mrs Coscia and Mr Uduma provided blood samples, and neither sample suggested that the donor was affected by alcohol or common drugs at the time of the collision.
(3)Both vehicles were in reasonable condition before the collision, and there was nothing in the condition of either vehicle that would have caused or contributed to the collision.
(4)The headlights in both vehicles were completely destroyed in the collision, so no testing could be carried out on either vehicle.
(5)Mr Uduma admits he was the driver of the Jeep Patriot 4WD which was involved in the collision at Charleston on 4 December 2010.
(6)At the time of the collision, Mr Uduma was in possession of a driver’s licence issued in Nigeria.
(7)The road laws in Nigeria require that drivers drive on the right-hand side of the road.
(8)Mobile phone records showed no calls or text messages sent or received by Mr Uduma’s phone around the time of the collision.
Prosecution Case
There were no witnesses to the collision apart from the two drivers.
Mrs Coscia described the conditions as a ‘warm and balmy night’. She said she was driving at between 90 and 100 kilometres per hour. As she approached the hill, there were double lines indicating that passing was prohibited. This is confirmed by the scale plan prepared by Brevet Sergeant Liebich (Exhibit P3). She was driving in the left (western, northbound) lane. Her headlights were on. She could not remember whether they were on high beam or not. She said she would have dipped her lights to low beam had she seen oncoming headlights.
Mrs Coscia said she suddenly became aware of a vehicle ‘directly in front of me’. She said this car was at the crest and she was still only half‑way up (T 14). She did not remember whether she took evasive action, nor did she remember the impact. She said it all happened in a ‘split-second, it all happened very quickly’.
Mr Robert Sutton was the first person on the scene after the collision. Mr Sutton is a tow-truck driver with the RAA. He called the emergency services and rendered what assistance he could.
Mr Sutton said he only saw two cars on the road after the collision, one from Charleston, which did not stop but turned around and drove away, the other from Woodside. The driver of this vehicle stopped and rendered assistance.
Mr Sutton described it as a dry road, there was clear vision, smooth bitumen, good verges, they were ‘perfect’ conditions for night driving.
Brevet Sergeant Liebich attended the scene just as the helicopter left with Mrs Coscia aboard. He prepared the scale plan using computerised survey equipment. He established the approximate point of impact (‘API’) by reference to scrape and gouge marks on the bitumen surface. The plan suggests that the API is about 50 metres from the crest. There was general agreement, after the court viewed the scene, that the distance appeared more like 20 metres. In the circumstances of this case, nothing turns on this discrepancy.
The police officers found no tyre marks on the road surface which were relevant. I infer from this evidence that there were no severe steering inputs, severe braking or tyre failure prior to the collision. Brevet Sergeant Liebich said that since the advent of ABS (Anti-lock Braking System) on modern cars, the incidence of skid marks in extreme braking situations has decreased.
Brevet Sergeant Liebich expressed the opinion, without objection, that the Jeep must have rotated anti-clockwise (through about 135°, from his diagram) to come to rest on the western side of the road facing roughly north-east. The Alfa Romeo must also have rotated anti-clockwise through 180° (from the plan, perhaps 150°) to come to rest in the centre of the road facing roughly south-west.
The damage to both vehicles confirms that they collided front-on. It was more severe on the left-hand side of each vehicle, suggesting that the centre-point of each vehicle was offset to the right, vis-à-vis the other.
Both cars moved slightly to the south after impact, which Brevet Sergeant Liebich attributed to the greater mass of the Jeep. He also opined that the extent of the damage, and the extent of the rotation, suggested that the vehicles were travelling at about the same speed at impact.
Brevet Sergeant Liebich’s colleague, Senior Sergeant Kuchenmeister, agreed with these calculations and opinions.
Senior Sergeant Kuchenmeister is an experienced accident reconstructionist. He did not attend the collision scene that night, but since then has conducted certain tests using Brevet Sergeant Liebich’s measurements and markings.
On 13 September 2011, at night, Senior Sergeant Kuchenmeister and another officer drove vehicles towards each other on the same hill. Senior Sergeant Kuchenmeister was driving a Ford Ranger and his colleague, Senior Sergeant Angus Spence, was driving a Ford Falcon.
As they both drove towards the API, Senior Sergeant Kuchenmeister noted that:
·at a point when the Ranger was 66 metres north of the API and the Falcon was 55 metres south of it (i.e. they were 121 metres apart), he could not see the other car, but he could see the indirect glow of oncoming headlights (T 94);
·at a point when the Ranger was 31 metres north of the API and the Falcon was 27 metres south of it (i.e. they were 58 metres apart), he could clearly see the Falcon (ibid).
Mr Boucaut made a number of valid criticisms of these tests. He correctly pointed out that there is no evidence about the condition of the headlights in either vehicle, or even if the headlights were of the same type. Although Senior Sergeant Kuchenmeister said that, using specifications from an ‘industry website’ called ‘redbook.com.au’, the Falcon was one centimetre taller than the Alfa Romeo and the Ranger was a similar height to the Jeep Patriot, there is no evidence of the height of the headlights in any of these vehicles, or the angle of the headlights on either high beam or low beam.
So I agree with Mr Boucaut’s submission that this evidence is of limited value. The most that can be concluded from it is that it is safe to assume that the headlights of the Alfa Romeo would have been no higher than those on the Falcon. Senior Sergeant Kuchenmeister measured the height of the driver’s seating position in the Jeep Patriot, which was similar to that of the driver of the Ranger. So Mr Uduma’s opportunity to see the oncoming car would have been no less than the view available to the driver of the Ranger.
Accepting that the API was 20 to 50 metres south of the crest, I accept Senior Sergeant Kuchenmeister’s opinion that the headlights of the Alfa Romeo would ‘effectively strike the ground as it was travelling uphill and wouldn’t be visible to an oncoming vehicle until the vehicles, themselves, would be in view of each other’ (T 82).
Senior Sergeant Kuchenmeister set out the following assumptions:
·for the Jeep to have moved sideways from the southbound lane to the northbound lane and collided head-on with the Alfa Romeo (‘the manoeuvre), it moved 3.3 metres to the west;
·the two vehicles were travelling at 100 kilometres per hour;
·the coefficient of friction was 0.75 (the appropriate range is 0.65 to 0.75, so using the highest figure produces the result most favourable to Mr Uduma);
·applying the appropriate formula, Senior Sergeant Kuchenmeister concluded that the manoeuvre would take 1.3 seconds, during which the vehicle would travel 37 metres (T 101). If the manoeuvre had been any faster, the coefficient of friction would have been exceeded and the driver would lose control. Any slower, and the manoeuvre would require a greater distance travelled;
·if Mr Uduma’s vehicle was 0.5 metres further west towards the centre line before the manoeuvre, the manoeuvre would take 1.2 seconds, and the vehicle would travel 34 metres (T 107);
·if the vehicles were travelling at 90 kilometres per hour, then Mr Uduma’s car would have travelled 33 metres during the manoeuvre, and if the vehicle was 0.5 metres closer to the centre line, it would have travelled 30 metres;
·the times and distances postulated do not include the time the driver would have taken to observe the other car, perceive a threat, decide what to do and then act. The internationally accepted guideline figure to do these things is 1.5 seconds, although that is subject to wide variation (T 104).
Defence Case
Mr Uduma gave evidence. He said that he had been a photographer in Nigeria before coming to Australia at the age of about 22. He held a driver’s licence in Nigeria before coming to Australia.
Mr Uduma works as an aged-care worker in Australia. He obtains work from an agency and works at various facilities. He drove the Jeep vehicle as far afield as Victor Harbor, Mount Barker and Salisbury. He often drove at night. He said most of his work was at night (T 117).
On 3 December 2010, he started work at a residential care facility near Woodside at 3.30 p.m. and finished at 10.30 p.m. He then drove to Charleston to meet a friend at the hotel. He lost his way, and had to ask for directions. He passed the collision scene twice on his way there. He denied that he was fatigued after work. He felt ‘very strong’ (T 120).
Mr Uduma said he did not stay long at the hotel, and did not drink alcohol. As he left Charleston and while he was still in the 80 kilometre per hour zone, he encountered two cars coming the other way. He was in the left lane at that time (T 122).
He said that after leaving the 80 kilometre per hour zone, he sped up to 100 kilometres per hour. His headlight was on low beam. As he approached the hill, his speed was ’90 plus’ (T 124). He said he saw a light on top of the hill, and then (T 122):
When I got to the top of the hill I just saw the light, it came up all of a sudden in my face (INDICATES).
His indication with two arms out, suggested that the light was overwhelming, or all-pervasive. He added (T 122):
… everywhere was (so brightly) all of a sudden.
He said he was sure the lights of the other car were on high beam. He said he was still in the left lane. He was unable to explain what happened then. He said (T 125):
When the accident occurred I don’t know what happened to my car, I don’t know where my car went to, I don’t know which direction – when the light shone, when the accident happened, he doesn’t know where his car – which direction his car went to.
(The second part of that answer was the interpreter’s gloss on Mr Uduma’s answer.)
In summary, then, Mr Uduma was describing a two-stage process, in which he first became aware of the glow of the headlights on the approaching car shining on the surrounding trees, and then the sudden glare of the direct view of the headlights, after which he does not know what happened. He said (ibid):
It shone on the trees and it wasn’t long after the lights shone on the trees that it came on my face all of a sudden.
Mr Uduma said he did not cause his vehicle to change direction. He said (T 126):
I held the steering tight, I didn’t steer, I just waited for the car to pass me.
Mr Boucaut led evidence from his client that he was injured in the collision, and that he was treated with warfarin, and that, a few days later, he suffered ‘bleeding on the brain’ (T 127). No medical evidence was called about that.
As to where the two vehicles were when Mr Uduma saw the full glare of the headlights, he said (T 138):
When the lights shone on the trees I was almost getting on top of the flat – on the flat of the hill, that was where everything happened.
Addresses of Counsel
Counsel for the Director of Public Prosecutions, Mr Edge, committed his case to the proposition that Mr Uduma was driving on the incorrect side of the road prior to the collision, not as a result of the glare of Mrs Coscia’s headlights, but through inattention. Mr Boucaut, counsel for Mr Uduma, accepted that if that has been proved beyond reasonable doubt, then it would constitute dangerous driving.
Indeed, Mr Boucaut made a number of other clear and very proper concessions at the outset of his address. It is useful to record them at this stage:
·Mrs Coscia’s injuries constitute ‘serious harm’;
·Mr Uduma’s vehicle, at the moment of impact, was on the incorrect side of the road;
·Mrs Coscia’s opportunity to view Mr Uduma’s vehicle ‘must have been the merest moment, if not a nanosecond’.
Returning to Mr Edge, he accepted that if the evidence discloses a reasonable possibility that Mr Uduma swerved into the path of Mrs Coscia’s vehicle because he was blinded by the headlights, or to use Mr Boucaut’s words, in ‘the agony of the moment’, then dangerous driving has not been proved.
Mr Edge submitted that there was simply not enough time or distance for Mr Uduma to have seen Mrs Coscia’s lights, be blinded by them, react, swerve into the next lane, then straighten up before the impact occurred. He submitted that since Mrs Coscia did not see Mr Uduma’s car until it was on the crest, and it was already on her side of the road by then, it would not have been there because Mr Uduma was blinded by her headlights. Further, the fact that Mrs Coscia had no time to take evasive action after seeing Mr Uduma’s car supports these contentions.
Mr Boucaut submitted that a combination of translation difficulties and Mr Uduma’s brain haemorrhage after the collision (if that be what it was), and the fact that these events occurred over a very short space of time, means that I should not judge Mr Uduma’s evidence too finely.
Acknowledging that translation can be problematic, I formed the view that when there was a problem, it was readily apparent and that, in general, Mr Uduma gave his evidence in a relatively straightforward manner, and repeated critical aspects of it without inconsistency. I see no reason not to assess his evidence in the usual way, taking into account the expected limitations of translation.
Secondly, Mr Boucaut chose not to develop the topic of the effect of the haemorrhage on his client’s memory when he led this evidence. I am not prepared to infer from the fact that his client had a haemorrhage, if he did, that he necessarily has a loss of memory as a consequence.
Thirdly, I accept that when a person is recalling a terrifying incident which occurred over a short space of time, there are likely to be difficulties recalling matters of detail. But I think both Mrs Coscia and Mr Uduma displayed recall to a similar extent, and exhibited no difficulty in describing events just prior to the impact, in about the same amount of detail.
Mr Boucaut pointed out that Mr Uduma has been in Australia for a substantial time, and has driven extensively, including on country roads and at night. He submitted that the prosecution suggestion that he suddenly drove on the wrong side of the road, thinking he was in Nigeria, makes no sense.
Mr Boucaut submitted that his client may have been distracted by the glow of Mrs Coscia’s lights on the tree canopy overhead before the full glare of the headlights was upon him. I do not consider that submission is supported by his client’s own evidence, which made it clear that it was not until the full direct glare of the headlights was upon him that he felt their impact, and that even then, he held his line on the road.
Mr Boucaut pointed out the infirmities in the testing carried out by Senior Sergeant Kuchenmeister, in relation to headlights, which I have already mentioned. In my view, the decision in this matter does not depend on their testing, for reasons which I will elaborate later.
Analysis and Conclusions
Mr Edge submitted that I should accept Brevet Sergeant Liebich’s evidence about the API. Noting Mr Boucaut’s general concession on the topic, and the fact that nothing to the contrary was put in cross-examination, I do accept that evidence.
For the same reasons, while always keeping in mind that these findings of fact are always for me, and that the opinions of expert witnesses should not overbear that fundamental principle, I also accept the correctness of the opinions expressed by Brevet Sergeant Liebich and Senior Sergeant Kuchenmeister, within the limitations I have expressed during the discussion of that evidence.
Implicit in that acceptance is a finding of fact that the collision occurred when the two vehicles were head-on, or at least at a slight angle which makes no appreciable difference, with a slight offset to the right of each vehicle; further, that the API was 20 to 50 metres south of the crest of the hill. In other words, Mr Uduma’s vehicle crested the hill before Mrs Coscia’s vehicle did.
Mr Edge’s submission was simply that Mr Uduma’s evidence about his manner of driving prior to the impact cannot be true.
Mr Uduma’s evidence was that even after he saw the full glare of the headlights, he continued to grip the wheel expecting the other vehicle to pass. He denied swerving or otherwise steering the vehicle away from a line straight ahead. He said he has no memory of what happened after that.
On Mr Uduma’s own evidence, his car was almost on the flat part of the hill when he saw the direct glare of the headlights (T 138). This corresponds with Mrs Coscia’s evidence that when she first saw the car, it was at the crest, and she was only half-way up the hill (T 14).
Consulting Brevet Sergeant Liebich’s chart, this would put the two vehicles about 65 metres apart (according to his measurements, the distance from the bottom of the hill to the crest is 130 metres).
This is also consistent with Senior Sergeant Kuchenmeister’s evidence that, within the great limitations of his testing, the two vehicles were between 121 and 58 metres apart when they first became visible to each other. The evidence of the two eye-witnesses clearly puts them at the shorter end of that range. There is no reason why I should reject that evidence.
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.
So, it follows that, even if Mr Uduma had swerved to the right after seeing the glare of Mrs Coscia’s headlights, his vehicle would have travelled between 55 metres (30 + 25) and 70.5 metres (33 + 37.5) before it could have been on the wrong side of the road. Since both vehicles were travelling at the same speed, they could not have been less than between 110 and 141 metres apart when they first became visible to each other for this to have occurred. This scenario is also impossible if Mrs Coscia’s evidence that Mr Uduma’s vehicle was already on the incorrect side of the road when she first saw it is accepted. There is no reason why that evidence should not be accepted.
Even that scenario does not allow for Mr Uduma’s evidence that he continued in a straight line for an unspecified period after the direct glare of the headlights became visible.
And even putting all that to one side, I find it impossible to comprehend how, or more importantly why, Mr Uduma might have, even in the ‘agony of the moment’, first swerved right towards the ‘threat’, and then back to the left to straighten up so the vehicles could collide head-on.
In my opinion, any explanation for that sort of manoeuvre is fanciful, and I reject beyond reasonable doubt the possibility that this occurred.
I mention here that it is not necessary that the prosecution prove that the act of driving dangerously by driving on the incorrect side of the road was a ‘willed’ or deliberate act. It is necessary that the act of driving was a willed or conscious act, but whether or not the driving was dangerous is to be judged against an objective standard irrespective of whether Mr Uduma intended to drive that way, or apprehended that he was doing so (Kroon v R[7]).
[7] (1991) 55 SASR 476 at 477-8 per King CJ, cited in R v Cain [2011] SASCFC 135
I am satisfied beyond reasonable doubt that, for some reason which is not apparent, Mr Uduma was driving south on the incorrect side of the road, well prior to the impact, and did not do so as a result of being distracted by Mrs Coscia’s headlights.
For those reasons, and having regard to Mr Boucaut’s concession, I conclude that the prosecution has proved beyond reasonable doubt that Mr Uduma’s driving was dangerous in the sense that it constituted a grave departure from the standard of care expected of a road user, that it imposed a risk which any reasonable person, in the position of Mr Uduma, ought to have recognised involved a risk of injury to others, which exceeded the ordinary risks of the road, and amounted to a real danger to the public.
Both elements of the offence therefore having been proved, my verdict is ‘Guilty’.
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