R v Willgoose - [2024] SADC 158

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WILLGOOSE
Criminal Trial by Judge Alone
[2024] SADC 158
Reasons for the Verdicts of his Honour Judge Alexandrides
5 December 2024
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
The accused in this matter is charged with one count of aggravated cause death by dangerous driving (Count 1) and one count of leaving an accident scene after causing death by careless driving (Count 2). The offence of aggravated careless driving is charged as a statutory alternative to Count 1.
The accused elected for a trial by judge alone. Expert opinion adduced from both prosecution and defence on collision dynamics during the course of the trial. Expert evidence adduced by prosecution to establish the blood alcohol concentration of the accused and the impairment of driving capacity while intoxicated.
Held: Count 1: Guilty
Count 2: Guilty
Criminal Law Consolidation Act 1935 (SA) s 19A, S19AB; Road Traffic Act 1961 (SA) s 43, s 45, referred to.
Bliss v R (1983) 173 LSJS 255; McBride v The Queen (1966) 115 CLR 44; Pfeiffer v R (Unreported) SACCA No 680 of 1990; R v Greenham 25 MVR 495; Stoekel v Harpas (1971) 1 SASR 172; Walton v Rowbottom (Unreported) SASC No 2591 of 1986, discussed.

R v WILLGOOSE
[2024] SADC 158
Case Summary
Prosecution Case
Defence Case
The Charges
Elements of the Offence
Aggravated Causing Death by Dangerous Driving (s 19A(1) Criminal Law Consolidation Act)
Count 1 Alternative - Aggravated Driving Without Due Care or Attention Thereby Causing the Death of a Person (s 45(1) & (3)(a) Road Traffic Act)
Leaving an Accident Scene after Causing Death by Careless Driving (s 19AB(1) Criminal Law Consolidation Act)
Legal Directions
Evidence at Trial
The scene of the collision
Brevet Sergeant Anna Gallamore
Photographs
Observations of witnesses at the scene of the collision
Evidence of observations of lighting conditions
Evidence of observations of weather conditions
Evidence of observations of road conditions
Evidence of what was heard
Evidence of what occurred
Assessment of witnesses at the scene of the collision

Collision reconstruction evidence
Elliott McDonald – damage to the Kia
Reconstruction conducted by Sergeant Mark Fulcher
Examination of the scene
Collision dynamics
Visibility and conspicuity
Driver hazard detection
Perception response time
Gap acceptance
Cross-examination
Cued and non-cued scenarios
The IDRR Study

Intoxication and its effects
Pre-collision alcohol consumption by the accused
CCTV and financial Records
Charlie Louise Gunn-Marwick

Professor Jason White
The effects of alcohol generally
Cross-examination
Re-examination

Agreed Facts
Defence Witnesses
Lauren Jean Willgoose
Background, use of alcohol and mental health
Day of the collision
Weather
At the hotel
Alcohol tolerance that night
Driving home
How the accused realised she had hit a pedestrian
Cross-examination
Uncertainty about how much wine she drank after arriving home
After returning home
Description of what she saw and heard during the collision
Damage to her car
Why she did not stop to investigate the bang
Thoughts about the damage to the car
The news article
Plans to go to The Goody
Sequence of events before realising she hit a pedestrian
Effects of alcohol while at The Goody
Visibility on Goodwood Road

Analysis of collision and critique of police collision reconstruction evidence
Professor Robert Anderson
Cross-examination
Driver perception before 2.2 seconds from the point of impact
Factors that might affect conspicuity
Illumination of Mr Walsh by the accused’s headlights
Use of the IDRR Program
Driver expectancy or cueing
Vehicle speed and braking
Reconstruction/experiment using an assistant
Lux readings

Consideration and Findings
Count 1 – Causing Death by Dangerous Driving
Was the accused the driver of the motor vehicle which collided with Mr Walsh?
Was the manner of the accused’s driving dangerous to any person?
Scenario 1
Scenario 2
Visibility
Weather and road conditions
Visual clutter
Cueing
The significance of pedestrians on the footpath
Could a reasonably prudent driver a similar situation have detected Mr Walsh?

By driving in a manner dangerous has the accused caused the death of Mr Walsh?
Scenario 1
Scenario 2
Aggravated circumstances

Conclusion
Count 1
Count 1 alternative – Aggravated driving without due care and attention
Count 2 – Leaving an accident scene after causing death by dangerous driving
Was the accused the driver of a vehicle?
Did the accused drive without due care or attention?
Did the accused’s failure to exercise due care or attention cause the death of a person?
Did the accused fail to fulfil her statutory obligations in relation to that incident?
Has the accused established a defence to the charge?

Verdict
Appendix 1 – A4 copy of scaled plan
Appendix 2 – Agreed facts
Case Summary

On 30 June 2021 Mr Anthony (Tony) Walsh, his wife, Ms Christine Walsh and another couple were dining at the Good Gilbert restaurant (the Restaurant) situated on the northeastern corner of Goodwood Road and Gilbert Street, Goodwood.
Mr Walsh had consumed a meal and wine before he and his companions left the restaurant just before 10:00 p.m. The group stopped on the footpath briefly before Mr Walsh began to cross to the western side of Goodwood Road alone, leaving his wife and their companions on the footpath. Mr Walsh stepped off the footpath close to the apex of the corner nearest the restaurant. He headed at a slight angle towards his car which was parked opposite the T junction and just south of the restaurant.
Mr Walsh was wearing blue jeans, a red outdoor jacket and a yellow cap.
The area was illuminated by street lighting which was patchy due to some shadowing from deciduous trees in their dormant winter phase that had virtually no leaves. There was additional illumination in the area from the lights at the restaurant and other businesses on Goodwood Road. The internal lights at the restaurant were casting some light through the windows. Floodlights under the verandah of the outdoor dining areas of the restaurant were operating together with fairy lights on the outside of the veranda. The Capri Theatre on the southeastern corner of Goodwood Road and Gilbert Street was open. Lighting from the Capri Theatre included internal lights, verandah lights and a large neon sign on the exterior wall of the theatre facing Goodwood Road. The Eggless Café on the western side of Goodwood Road was open and illuminated.
The road surface was wet from rain during the evening.
As he crossed the southbound lanes, just before reaching the centre line of Goodwood Road, Mr Walsh was struck by the front right side of a white Kia Sportage which was travelling south on Goodwood Road.
The Kia was being driven by the accused, Lauren Jean Willgoose. On the prosecution case the accused failed to brake, swerve, or take any evasive action before the collision with Mr Walsh.
Mr Walsh was thrust into the air by the impact. He came to rest forward from the point of impact on the western side of Goodwood Road, in the northbound lane nearest the kerb.
Mr Walsh suffered multiple injuries including head injuries. He died of his injuries at the Royal Adelaide Hospital on 9 July 2021, having never regained consciousness.
Prior to the collision the accused had been drinking with a friend at the Goodwood Park hotel, also known as ‘The Goody Hotel’ (The Goody). The hotel is situated on Goodwood Road about 350 metres north of the point where Mr Walsh was struck by the car.
The accused consumed 1.15 litres of red wine, four 250 ml glasses and one 150 ml glass, between about 6:00 p.m. and 9:55 p.m. before driving alone from the hotel.
The prosecution alleges the accused failed to see Mr Walsh and take evasive action because she was grossly affected by alcohol. Her failure to see Mr Walsh in those circumstances is alleged to amount to driving in a manner dangerous which caused the death of Mr Walsh. She is charged with aggravated causing death by dangerous driving. The alleged circumstances of aggravation are that when committing the offence, the accused had present in her blood a concentration of 0.08 grams or more of alcohol in 100 ml of blood.
The accused did not stop after colliding with Mr Walsh. She is charged with the offence of leaving an accident scene after causing death by careless driving.
Following the collision with Mr Walsh, the accused drove to her home at Cumberland Park, a relatively short distance from the collision.
On the defence case the prosecution cannot establish her manner of driving was dangerous. The accused asserts there is no evidence that her pre-collision driving can be described a bad driving and that despite her consumption of alcohol, the prosecution cannot establish that she was incapable of exercising effective control over the motor vehicle.
Furthermore, the accused asserts that Mr Walsh could not be detected on the road at all or until it was too late, and the collision was unavoidable.
In relation to the offence of leaving an accident, on the accused’s case, she was unaware she had struck a pedestrian when driving on Goodwood Road. When she arrived home, she inspected the damage to her car before going inside. She was later joined by her partner. She consumed more red wine and discussed the damage to her car with her partner before going to bed.
On the accused’s case, she only became aware of her involvement in a collision with a pedestrian the following morning, after reading an online news report of a hit and run collision the previous evening on Goodwood Road. The accused contacted her employer and several lawyers. Later that morning a lawyer contacted police on behalf of the accused. The accused surrendered to police at 10:30 a.m. on 1 July 2021 at the lawyer’s office.
When spoken to by police the accused admitted being the driver involved in the collision.
Prosecution Case
In relation to Count 1, causing death by dangerous driving, the prosecution case is that the accused’s driving was dangerous in that her failure to keep proper lookout was extremely poor and so defective as to amount to dangerous driving.[1]
[1] Prosecution Written Submissions, para 51.
The prosecution says that the collision occurred on a straight stretch of road which was well lit by streetlights and ambient light from businesses in the area.[2] On the prosecution case there was nothing obscuring the accused’s view as she drove on Goodwood Road.[3] On the prosecution case the weather was cool and it had been raining earlier, but not at the time of the collision. The prosecution submits that the road was damp but not slippery and that the traffic was light.[4]
[2]     T6.
[3]     T7.
[4]     T5.
The prosecution case is that the accused was driving on Goodwood Road at about 45 kph and at an absolute minimum, should have seen Mr Walsh on the road in front of her 27.5 metres from the point of collision. The prosecution says this would have allowed sufficient time for her to have attempted to brake or take evasive manoeuvres.[5] The prosecution says the accused’s failure to make any braking or take evasive manoeuvres is evidence of her grossly defective look out.
[5] T11.
The prosecution says that it is simply a question of whether the accused’s lookout was defective and so defective that it amounted to dangerous driving.[6]
[6] Prosecution Written Submissions, para 51.
It is suggested that the explanation for the accused’s defective lookout is her level of intoxication which impaired her faculties, including her ability to perceive and respond to any changes or circumstance that might have arisen.[7] On the prosecution case, expert opinion evidence on the accused’s drinking at the hotel and taking into account her height and weight together with the average rate of alcohol elimination, establishes that the accused had a blood alcohol concentration significantly over the legal limit.[8] It says that the expert opinion evidence is that the effects of alcohol on a person’s cognitive functioning include an impairment of concentration and perception, reduction in reaction times, reduced cognitive functioning including the ability to think clearly and make quick and appropriate decisions, reduction in muscle coordination or motor skills necessary to operate a motor vehicle. The prosecution case is that the accused’s blood alcohol level markedly impaired her ability to drive.[9]
[7]     Ibid, para 54.
[8]     T7.
[9]     T8.
The prosecution in its opening address suggested a second and ‘perhaps a more subsidiary way’ in which it puts its case is that simply by getting behind the wheel of her car and driving at that level of intoxication, the accused’s manner of driving was dangerous.[10] It was suggested that the manner of the accused’s driving can be characterised as dangerous even though when viewed objectively, the way she drove was unexceptional.[11] I understand that submission to be a reference to the accused’s driving approaching the T junction. This secondary basis of criminal liability was not pursued by the prosecution in its closing submissions.[12]
[10] T13.
[11] T13.
[12] Prosecution Written Submissions.
On the prosecution case the accused’s manner of driving was a substantial cause of the death of Mr Walsh notwithstanding his own contribution to the collision by crossing the road at night when there was insufficient time to do so safely and the effects of his own alcohol consumption.[13] The prosecution submitted that the conduct of Mr Walsh must be taken into account in assessing whether the accused’s driving was dangerous and whether it was the substantial cause of Mr Walsh’s death.
[13] T13.
In relation to the alternative to the offence to Count 1, namely the offence of aggravated causing death by driving without due care or attention, the prosecution case is again based on the lack of proper look out by the accused, but recognising that the departure from the required standard of driving did not rise to the level of dangerous.[14] The standard prosecution case for the alternative charge is that the accused’s lookout fell below that which is expected of a reasonably prudent driver in similar circumstances of the situation faced by accused.
[14] T15.
In relation to Count 2, the offence of leaving the scene after causing the death of a person by careless driving, the prosecution case is that it must have been apparent to the accused what had just occurred when her car struck Mr Walsh from the ‘loud significant bang’ which drew the attention of witnesses, and which threw Mr Walsh into the air. Despite that, the accused did not stop to render assistance, contact emergency services or comply with any of her obligations as a driver.
On the prosecution case the accused had driven from the carpark of The Goody situated at on Goodwood Road, Goodwood, 350 metres north of the approximate point on Goodwood Road where Mr Walsh was struck by the Kia.
CCTV recordings from security cameras located in the hotel carpark show the accused walking through the carpark towards her car. The same CCTV camera records the accused’s Kia drive from the carpark at about 9:54 p.m. CCTV recordings from a camera located at business premises on Goodwood Road opposite the hotel show the accused driving the Kia on Goodwood Road at about the same time and travelling south in the direction of the restaurant.
CCTV cameras located outside the Good Gilbert record the Kia travelling past the restaurant at about 9:55 p.m. The second of those cameras located on the external wall of the restaurant along Gilbert Street records Mr Walsh as he is crossing the road just moments before he was struck by the Kia. The impact occurred just out of the camera view and was not recorded.
A CCTV camera located at the Baptist Church just south from where Mr Walsh was struck records the Kia continuing south on Goodwood Road.
A CCTV camera located at the McDonald’s store at the northeastern corner of Goodwood Road and Cross Road records the Kia approach the intersection at about 9:57 p.m.
A CCTV camera at the OTR service station located on the northwestern corner of Goodwood Road and Cross Road (opposite McDonald’s) records the Kia at the intersection facing south.
A CCTV camera located at the intersection of Goodwood Road and Cross Road facing north, operated by the Department of Transport, records the Kia at 9:58 p.m. in the right turn lane on Goodwood Road for traffic turning to travel west on Cross Road.
The accused’s home at the time was located at 22 Mathias Avenue, Cumberland Park which runs off Cross Road a short distance to the west of the intersection where the Kia was recorded in the right turn lane.
Defence Case
There is no dispute that the accused was the driver of the vehicle that struck Mr Walsh, thereby causing his death.
The defence disputes the prosecution assertion that the manner of the accused’s driving as categorised was dangerous.
The defence accept that the accused attended the Goodwood Park Hotel on the evening of 30 June 2021, at about 6 p.m., and drank 1.15 litres of Pinot Noir before driving home at 10:00 p.m.[15] They acknowledge that the accused ‘clearly drank too much to drive’ and that ‘she should not have driven’.[16]
[15] Defence Written Submissions, para 2.
[16] Ibid.
The defence submits that the accused’s blood alcohol concentration (BAC), was about 0.17%, which it acknowledges was a ‘significant amount’. However, it says despite that level and despite the evidence of expert witness Professor Jason White about the effects of that level on the ability of a person to drive, the prosecution is not able to point to any aspect of her driving from the hotel to the point of the collision that could be described as ‘bad driving’. Furthermore, after the collision, the accused apparently negotiated the drive home without further incident.[17]
[17] Ibid, para 3.
The defence submit that there is a significant gap in the prosecution case and it is forced to rely upon her BAC to fill that gap when other explanations are reasonably open.[18]
[18] Ibid, para 3.
It submits that there is no proper and adequate analysis on the prosecution case of other reasonable possibilities to explain why the accused did not or might not have detected Mr Walsh, not least of which were the driving conditions that night.[19]
[19] Ibid, para 5.
The defence says that where there are possible explanations for the accused’s failure to detect Mr Walsh, if the prosecution is unable to show those possibilities are not unreasonable, then that reasonable possibility must (if an essential fact) give rise to a reasonable doubt on the charges.[20]
[20] Ibid, para 7.
The defence submits that the prosecution relies upon the fact of the collision to prove its case, in effect that the result proves that the accused was driving dangerously. It criticises the prosecution submission where it states;[21]
The defendant did not see Mr Walsh on the road ahead, evidenced by the complete lack of evasive manoeuvring. It is submitted this, itself, reveals that her driving was dangerous.
[21] Prosecution Written Submissions, para 52.
The defence submits that the prosecution, by this submission, has put the fact of the collision and lack of evasive action as proof that the accused’s driving was dangerous. It suggests that this not the correct approach.[22] I pause to note that the prosecution submission at para 52 of its written submissions refers only to the failure to take evasive action as proof of dangerous driving and not the collision itself.
[22] Defence Written Submissions, para 4.
The defence submits that the prosecution’s submissions contain a number of submissions that in some respects fail to keep the onus at the forefront of any analysis of facts. Particular attention is drawn to paragraphs 44, 45, 86, 155, 158 of the Prosecution Written Submissions. The defence submits that care needs to be taken to ensure that any analysis does not inadvertently reverse the onus of proof.[23]
[23] Ibid, para 6.

The defence case is that the prosecution cannot, on a proper examination of the evidence available, exclude as a reasonable possibility that the accused would not have detected Mr Walsh at all or until it was too late, such as the collision with him was unavoidable.[24] The defence submit that the law recognises that the unavoidable is without criminal consequences.[25]
[24] Ibid, para 10.
[25] Ibid, para 10.1.
On the defence case, when Mr Walsh crossed the road there was at best a gap of a little over two seconds, being the distance measured in time between the potential conflict point and where the position of the pedestrian was. Contrary to expert evidence led by the prosecution, the defence submitted that based on expert opinion evidence, almost no pedestrian would accept a gap of less than four seconds.[26] I note that this submission does not accurately reflect the evidence presented by the prosecution. The prosecution evidence was that the gap accepted by Mr Walsh was 6.28 seconds from when he stepped off the kerb to cross a four-lane road. According to the prosecution evidence, 56% of pedestrians would accept such a gap and 44% would not. The defence submissions on this point rely on a gap based on the position of Mr Walsh as he entered lane 3 and the conflict point. The defence submission seeks to contrast two different observations which is not meaningful and was of no assistance.
[26] Ibid, paras 151-155.
The defence case is that the limitations from the weather and light conditions on the night of the collision meant that the court could not be satisfied that there was any adequate opportunity for the accused to detect Mr Walsh in her vision in sufficient time to avoid the collision.
The defence dispute the prosecution’s characterisation of the weather conditions on the night of the collision, particularly in relation to the wet road. The defence also dispute the degree of lighting and visibility and say that those matters are highly relevant as to whether the accused was in a position to see Mr Walsh as he crossed the road.
The defence submits that as a matter of law driving with a high blood alcohol concentration is, in itself, insufficient to amount to dangerous driving.
The defence submits that this is not a case where because of alcohol the accused was incapable of exercising effective control of her vehicle and therefore driving in circumstances that were dangerous.[27]
[27] Ibid, para 17.
The defence asserts that the expert opinion evidence about the effects of intoxication does not establish that the accused’s blood alcohol concentration meant her driving faculties were impaired to such an extent that she must have been incapable of exercising effective control of the vehicle.[28]
[28] Ibid, para 18.
On the defence case, the accused did not realise any person had been killed or injured in the incident on Goodwood Road. Furthermore, having regard to the lighting and reduced visibility in the area, glare, the weather, the wet or damp road conditions together with the brief time in which the collision occurred, it was reasonable for the accused to be unaware that someone had been killed or injured.[29]
[29] Ibid, para 26.6.
The Charges
First Count
Statement of Offence
Aggravated Causing Death by Dangerous Driving. (Section 19A(1) of Criminal Law Consolidation Act, 1935).
Particulars of Offence
Lauren Jean Willgoose on the 30^th day of June 2021 at Goodwood, drove a motor vehicle in a manner which was dangerous to any person and thereby caused the death of Anthony William Walsh.
It is further alleged that Lauren Jean Willgoose committed the offence while there was present in her blood a concentration of alcohol of .08 grams or more of alcohol in 100 millilitres of blood.
Second Count
Statement of Offence
Leave an Accident Scene after Causing Death by Careless Driving. (Section 19AB(1) of Criminal Law Consolidation Act, 1935).
Particulars of Offence
Lauren Jean Willgoose on the 30^th day of June 2021 at Goodwood, drove a motor vehicle without due care or attention, thereby causing the death of Anthony William Walsh, and failed to satisfy the statutory obligations of a driver of a vehicle in relation to that incident.
Elements of the Offence
Aggravated Causing Death by Dangerous Driving (s 19A(1) Criminal Law Consolidation Act)
The offence of aggravated causing death by dangerous driving is comprised of the following four elements which the prosecution must prove beyond reasonable doubt;
1.the accused drove a vehicle,
2.the accused drove the vehicle in a dangerous manner,
3.by driving in that manner, the accused caused the death of another,
4.the accused committed the offence while there was present in her blood a concentration of 0.08 grams or more of alcohol in 100 ml of blood.
The four elements of the offence will be discussed in more detail later in these reasons when I consider my findings.
Count 1 Alternative - Aggravated Driving Without Due Care or Attention Thereby Causing the Death of a Person (s 45(1) & (3)(a) Road Traffic Act)
The offence of driving without due care or attention in its aggravated form where the driving caused the death of a person, is a statutory alternative to the offence to Count 1.
The alternative offence comprises the following elements which must be proven beyond reasonable doubt by the prosecution,
1.the accused drove a vehicle,
2.the accused drove the vehicle without due care or attention,
3.the accused thereby caused the death of another.
Leaving an Accident Scene after Causing Death by Careless Driving (s 19AB(1) Criminal Law Consolidation Act)
The offence of leaving an accident scene after causing death by careless driving is comprised of four elements which the prosecution must prove beyond reasonable doubt;
1.the accused drove a vehicle,
2.the accused drove without due care or attention,
3.the accused’s failure to exercise due care or attention caused the death of a person,
4.the accused failed to meet her statutory obligations in relation to the incident.
There are three statutory defences to the offence of leaving an accident scene after causing death. It is a defence if the defendant was unaware of the accident and that lack of awareness was reasonable in the circumstances. The accused bears the onus to prove the defence on the balance of probabilities.
The four elements of the offence and the defence will be discussed in more detail later in these reasons when I consider my findings.
Legal Directions
I am required to approach my task objectively and impartially, and not to allow any feelings of sympathy, dislike or prejudice to influence my deliberations. I must consider the matter only on the evidence presented in the court and applying logic and reason.
The accused is presumed to be innocent unless and until her guilt has been proved beyond reasonable doubt.
The onus of proving the offences lies on the prosecution, except in this case relating to the defence available to the accused with respect to Count 2 where the onus is on the accused to establish the defence on the balance of probabilities.
The prosecution must exclude as a reasonable possibility any hypothesis consistent with the accused’s innocence.
In this case the accused has given evidence. I am required to assess the evidence of the accused in the same way as any other witness. The accused’s evidence is not treated any differently from other witnesses because she is accused of a criminal offence. The onus of proof remains on the prosecution and the accused does not take on an onus of proving anything because she has elected to give evidence.
If I do not accept the evidence of the accused, or I reject the evidence of the accused, it does not follow that the allegations against her have been proven. If I do not accept her evidence, or I reject her evidence, I must still be satisfied that on all of the evidence that I do accept, the prosecution has proven its case beyond reasonable doubt.
I must assess the credibility and reliability of the witnesses that give evidence. When assessing a witness’s evidence, I must consider firstly whether the witness is credible, that is honest and truthful, and whether the witness is reliable, that is whether the witness has accurately recalled the matters about which he or she has given evidence. I remind myself that an honest witness might be genuinely mistaken about something about which he or she has given evidence. I am not required to accept or reject all the evidence given by a witness. I may reject aspects of the evidence of a witness and accept other aspects of the evidence of the same witness that I find credible and reliable.
I may draw inferences from the evidence that I accept when determining facts relevant to the case. Before drawing any inferences or conclusions from other facts which are established by evidence, I must not speculate or engage in guesswork. The inferences which I draw from other facts which I accept on the evidence must be logical and rational.
I direct myself that if relying on an inference to prove an element of the offence, I must be satisfied that the inference is the only reasonable inference that can be drawn from all the evidence.
In this case evidence was called from collision reconstruction experts and others, including Professor White, who expressed opinions about issues in this case relevant to determining factual questions. I remind myself that as a matter of general principle, witnesses cannot give evidence of their opinions. The exception to that proposition is that a qualified expert, that is a person who has training and experience in a recognised field, may provide an opinion that falls within his or her area of expertise on an issue relevant in the trial.
The evidence of an expert is to assist the court in coming to its own conclusions and reaching findings of fact about matters in issue that fall within the expert’s field.
I am not required to accept an opinion from an expert, however I must not capriciously reject the evidence; I may give it such weight as I consider appropriate or indeed reject the expert’s opinion.
Evidence at Trial
The scene of the collision
Brevet Sergeant Anna Gallamore
Brevet Sergeant Gallamore (Sergeant Gallamore) attached to the Major Crash Investigation attended the scene of the collision together with her colleague Brevet Sergeant Rebecca Guest at about 11:05 p.m. on 30 June 2021.
Sergeant Gallamore conducted an examination the layout of the area and seized CCTV footage from several businesses including the Good Gilbert.
Sergeant Gallamore examined the scene looking for marks on the roadways that would indicate the point of impact. Those marks included scuff marks, scrapes in the bitumen surface or evidence of a disturbed surface. She looked for tyre marks and vehicle particles, namely items that may have separated from the vehicle during the crash.
She said that there was no vehicle at the scene involved in the collision. Mr Walsh was no longer at the scene. She was searching for evidence which may have assisted in identifying the vehicle involved.
Sergeant Gallamore, with the assistance of Sergeant Guest, took a series of measurements at the scene using measuring equipment known as a total survey station. Using those measurements, she was able to prepare a scale plan of the collision scene indicating the location of items of interest. The scale plan was tendered as Exhibit P1. The plan scale is 1:200, which means one centimetre on the scaled plan represents two metres at the actual scene. An A4 copy of the scaled plan is attached to these reasons and marked Appendix 1. The copy is reduced in size from the original and therefore is no longer to scale.
The plan of the collision scene depicts the section of Goodwood Road a short distance north of the collision site to a short distance south of the collision of the site. The junction of Goodwood Road and Gilbert Street is marked on the plan. The restaurant is depicted on the northeastern corner of the junction of Goodwood Road and Gilbert Street. The Capri Theatre is depicted on the southeastern corner of Goodwood Road and Gilbert Street.
Mark A on the plan is the point of impact between the Kia and Mr Walsh.[30]
[30] T33.
The point of impact was determined by viewing CCTV footage from the Good Gilbert, the location of debris left at the scene of the collision and the accident reconstruction prepared by Sergeant Fulcher who also attended the scene.[31]
[31] T34.
The yellow and green markings on the plan indicate forensic markers identifying where debris from the collision was scattered across that area of Goodwood Road.[32]
[32] T34.
Mark B on the plan is the position Mr Walsh came to rest on Goodwood Road after the collision. That position was established based on accounts from witnesses and emergency services personnel who were first to attend the collision scene. It was also indicated by the discarded medical implements from treating paramedics and a discarded blanket.[33]
[33] T35.
A warning sign indicating the presence of pedestrians was marked on the map on the eastern side of Goodwood Road for traffic travelling south.[34] The pedestrian sign is 46 metres from the point of impact marked A on the plan.[35]
[34] T36.
[35] T46.
The edge of the bitumen roadway on Goodwood Road is marked by a light grey line on the plan. There is a gutter between the bitumen edge and the kerb. The bitumen edge and kerb are marked on both sides of Goodwood Road on the plan.[36]
[36] T35-T36.
Roadside trees are marked on the plan with a brown circle on both sides of Goodwood Road. The circles which are filled in represent smaller trees and the larger circles which are not filled in represent established trees which are larger.[37]
[37] T37-T38.
The grey area on the plan indicated some shading of the streetlights by the trees where this was relevant to the collision scene. It indicates that parts of the road were a bit darker than other parts.[38] Sergeant Gallamore explained that does not indicate that there was no lighting at all and there was lighting present in those areas. She said that the shaded areas indicate those particular sections were slightly darker than the previous of section of road.[39]
[38] T38-T39.
[39] T39.
The streetlights on Goodwood Road were marked on the plan. The plan indicates a streetlight on the western side of the road just to the left (north) of the point of impact marked A and on the eastern side just north of the restaurant.[40] The distance between the two streetlights was measured by Sergeant Gallamore is 25.4 metres.[41] The two streetlights were situated between the point of impact marked A on the plan and the point marked on the centre line of Goodwood Road 27.5 metres north of the approximate point of impact.
[40] T39.
[41] T50.
Sergeant Gallamore said there was lighting outside the restaurant. She said there was internal lighting but also different styles of exterior lighting along the verandah posts by the outdoor seating area. She said there were larger globes and fairy lights which were more decorative and gave off less light. The lighting was predominantly from the exterior area.[42]
[42] T39-T40.
The Capri Theatre which was painted a light-coloured whitewash reflected the light. The theatre has a series of outdoor globes that decorate around the exterior and interior of the theatre. The lights were on when she attended. She said that there is a vertical neon sign which was illuminated when she attended.[43]
[43] T40.
Sergeant Gallamore said that when she attended the visibility was good. She said there was plenty of lighting from the businesses that allowed her to work without needing a torch.[44]
[44] T40-T41.
Sergeant Gallamore said that she was able to walk through the scene and identify items of relevance which were clearly visible without additional lighting. When further inspecting those items, she used a torch. However, the lighting in the area meant that she could see all the elements of the collision scene and its surrounds.[45]
[45] T41.
She said that she did not have any difficulty seeing north along Goodwood Road when standing in the vicinity of the point of impact.[46] She said that the road and weather conditions were clear. She had clear visibility north beyond the railway line, at least a couple of hundred metres, possibly a lot more.[47]
[46] T41.
[47] T41.
Sergeant Gallamore identified the location of bench seats on the footpath outside the restaurant. She said that the benches were no higher than waist height. The benches had plants inside them and from her memory the plants did not protrude high up above the seats.[48]
[48] T41.
Sergeant Gallamore marked the position of a fence near benches on the footpath adjacent to the restaurant.[49] The position of the fence has changed since the collision. Additional fences have been erected since that time.[50]
[49] T42.
[50] T42.
The verandah posts are indicated on the plan. The posts supported the exterior around the roof of the restaurant.[51]
[51] T42.
Sergeant Gallamore identified bollards of similar height to the fencing approximately one metre in height marked on the plan between the two verandah posts.[52] Sergeant Gallamore identified a drop kerb where the kerb lowers, allowing for pedestrians to move up and down the kerb between the bollards.[53] Sergeant Gallamore said that she was able to determine where Mr Walsh first stepped from the footpath onto the road.[54] She identified two bollards indicated with a green circle on the plan on the northern side of Gilbert Street. She said that Mr Walsh stepped out between the bollard at the most westerly position and the drop kerb. She marked the plan at that point with an X.[55]
[52] T42-T43.
[53] T47.
[54] T47.
[55] T48.
Sergeant Gallamore measured the distance in a straight line between the point Mr Walsh first stepped off the footpath (marked X on Appendix 1) to the approximate point of impact (Point A) as about 8.5 metres. The distance from the bitumen edge of Goodwood Road along that same straight line to the point of impact measured approximately 6.8 metres.[56]
[56] T48.
A car belonging to Christine and Tony Walsh is marked on the plan situated on the western side of Goodwood Road facing the city.[57]
[57] T43.
The four lanes on Goodwood Road were referred to in evidence by numbers 1 to 4, commencing on the western side of Goodwood Road with lanes 1 and 2 for northbound traffic towards the city, and lanes 3 and 4 for southbound traffic.[58]
[58] T43.
Sergeant Gallamore agreed that the point of impact is between lanes 2 and 3, effectively about the centre line of Goodwood Road. She agreed that this point generally lines up with the centre of Gilbert Street.[59]
[59] T43.
Sergeant Gallamore measured the width of the lanes on Goodwood Road at that location.
The width of lane 1 measured perpendicularly from the bitumen edge was 3.7 metres. The width of the gutter from the kerb to the bitumen edge was 0.3 metres.[60]
[60] T44.
The width of lane 2 was 2.9 metres and the width of lane 3 was 3.1 metres.[61]
[61] T44.
The width of lane 4 was 3.6 metres to the bitumen kerb. The width of the gutter from the bitumen edge to the kerb was 0.4 metres.[62]
[62] T44.
Sergeant Gallamore agreed that the distance between the bitumen edge of lane 4 to the centre line is 6.7 metres or 7.1 metres from the kerb.[63]
[63] T44.
The distance between the centre line of Goodwood Road and the western kerb on the opposite side of the restaurant is 6.9 metres.[64]
[64] T45.
Sergeant Gallamore said that the distance between the restaurant and the kerb was measured at 3.1 metres.[65]
[65] T45.
Sergeant Gallamore said that the plan extends to a point approximately 52.5 metres to the north of point A.[66]
[66] T45.
Sergeant Gallamore marked on the plan using a scale ruler, a point on the centre line of Goodwood Road 27.5 metres north of point A on the plan.[67]
[67] T45.

Sergeant Gallamore said that she did not locate any tyre marks or scrape marks on the road prior to the point of impact.[68] She said she did not locate anything that might be suggestive of braking or evasive manoeuvres prior to the point of impact.[69] There were no tyre marks after the point of impact indicative of braking.
Photographs
[68] T62.
[69] T62.
Brevet Sergeant Gallamore produced a booklet of 42 photographs comprising photographs taken of the collision scene by her on 30 June 2021, screen shots from CCTV footage from the night of the scene and photographs of the accused’s car taken subsequently. The booklet was tendered as Exhibit P2.[70]
[70] T51.
Sergeant Gallamore commenced taking the photographs at about 12:10 a.m. and finished at about 3:11 a.m.
Sergeant Gallamore said that the photographs were taken at night using time exposure which can affect the amount of light and not necessarily reflect what the naked eye would see.[71] She agreed that one cannot look at the photographs and draw any conclusions about what the naked eye would see because of the nature of the lighting.[72]
[71] T52.
[72] T52-T53.
A booklet containing 72 photographs taken by Brevet Sergeant Gresch on the night of the incident was tendered as Exhibit P7. The booklet contains photographs of the general area and debris located in the area. The photographs were taken after safety cones and other markers were placed on the road by police officers to indicate points of interest, including the estimated point of impact and the location of debris.
Photograph 3 in Exhibit P7 is taken from a position facing south on Goodwood Road from about the centre line, just south of the restaurant, from a position that corresponds generally to the position in which the accused’s car was travelling just prior to the collision. A road safety cone marks the approximate point of impact. The car in which Mr Walsh and his wife drove to the restaurant can be seen on the western side of Goodwood Road where it was parked by Mrs Walsh when they arrived at the restaurant.
The photograph also depicts the various sources of lighting at the scene of the collision including the street lighting, lighting from the restaurant and lighting from the Capri Theatre. A closer view of those sources of lighting can be seen in photograph 4 of Exhibit P7.
Photograph 6 in Exhibit P7 is taken from the footpath outside the restaurant facing southwest. The safety cone marking the approximate point of impact can be seen at the centre of Goodwood Road. The shadowing from the trees can be seen in the photograph.
Photograph 8 in Exhibit P7 is taken from the northern kerb of Gilbert Street facing west towards the junction of Goodwood Road. The approximate point of impact is again marked by the safety cone. The shadowing on Goodwood Road can be seen from this perspective. The point at which the evidence indicates Mr Walsh stepped onto Goodwood Road can be seen in the photograph relative to the approximate point of impact.
I have not relied on these photographs to establish the level of illumination on the depicted stretch of Goodwood Road, noting that the evidence is that the camera cannot be relied upon to depict how an image is seen by the human eye. The images do however illustrate the sources of light, the areas to which the light is directed or falls, and the areas of shading from different perspectives.
In cross-examination, Sergeant Gallamore agreed that still images taken from a video recorded by a road traffic camera at Goodwood and Cross Road (photographs 40 and 42 in Exhibit P2) indicate from the reflections from the road surface that the road appears to be wet.[73] She agreed that photographs 35, 37 and 38 appear to show that the road surface is wet.
[73] T98.
At the request of defence counsel, Sergeant Gallamore printed copies of photographs not previously produced taken from the same vantage point as photographs 1 and 2 in Exhibit P2. The bundle of 14 photographs was tendered as Exhibit D8. The additional photographs were taken on the same occasion but with differing shutter speeds.[74]
[74] T132.
Sergeant Gallamore took photograph 1 of Exhibit P2 to show different elements within the collision scene.[75] The photograph indicated the points she was describing in her statement.[76] She agreed that the photographs depict pockets of darkness which are different in some of the photographs against other photographs of the same view. She said this was based on the shutter speed used in each photograph.[77] She agreed that in some of the photographs the darker patches were in different spots.[78]
[75] T124.
[76] T126.
[77] T127.
[78] T135.
Sergeant Gallamore agreed that there were darker patches on some sections of the road. This related to shadowing on the road and not to differences in the bitumen surface. She said it was quite marked on the night.[79] The shadow area did not move with movement of the tree canopy as there were few leaves on the tree, it being winter.[80]
[79] T128.
[80] T128-T129.
A flash was used to take some of the photographs when closer up.[81]
[81] T129.
When it was suggested to her that the photographs could not be relied upon to show any change in darkness of the road surface, Sergeant Gallamore said she could not comment on whether the shadow was a result of the dark patches, a shadow or a wet area on the road based on the photographs.[82]
[82] T129.
Sergeant Gallamore maintained her assessment that the scene of the collision was well lit. She said that she had the opportunity to examine the area over a number of hours and was aware of lighting from nearby businesses and street lighting. She agreed this was a subjective assessment and that she had not measured the lighting conditions scientifically.[83]
[83] T141.
Sergeant Gallamore did not recall that it rained. She could not specifically recall if the road was wet or damp but agreed that she recorded in her statement that the road was dry. She said that the spray paint used to mark the road at crash scenes ‘bleeds’ if the road is wet, and cannot be used if the road is wet or too damp. She said she was able to use the spray that night and to her that means the road was not significantly wet.[84]
Observations of witnesses at the scene of the collision
[84] T142.
There were numerous witnesses who were called at trial who were present in the vicinity of the collision who saw and/or heard the collision and were able to recall the lighting, weather conditions and what occurred at the time of the collision.
These witnesses included Christine Walsh and her dinner companions Lesia Iwaniw and her husband Roman Nowosilskyj, the proprietor of the Good Gilbert Wilson Shawyer, a group of diners at the outdoor section of the restaurant on Gilbert Street, several people waiting outside the Eggless Café on Goodwood Road opposite the Capri Theatre, and another person who attended the restaurant to collect vegetables.
Evidence of observations of lighting conditions
Wilson Shawyer is the proprietor of the Good Gilbert. He was working at the restaurant on the night of the collision. He said that the restaurant extends about 10 to 15 metres along Goodwood Road to Gilbert Street. There are three external floodlights that are directed at the business. There are a series of fairy lights that run along the roof trim. The floodlights sit underneath the verandah on the inside of the verandah and illuminate signage and external artwork. He said there were lights on both Goodwood Road and Gilbert Street which will working at the time.[85]
[85] T261.
Mr Shawyer said that inside the restaurant there are spotlights, downlights and pendant lights as well as LED shelving lights. All the windows along the Goodwood Road frontage of the premises are clear.[86]
[86] T262.
He said that the general lighting on the roadway outside the business is ‘really great’. He said it is quite a unique corner with the cinema opposite the restaurant which tends to be a high flow pedestrian area and there has never been any concern about external lighting.[87]
[87] T262.
Mr Shawyer said that there are a lot of spotlights on both sides of the road that illuminate the main part of the road.[88] He did not have any difficulty seeing down Goodwood Road at all in the direction of the city or in the opposite direction towards the underpass.[89] After the collision, when Mr Shawyer first stepped out of his bar onto the footpath, he could see Mr Walsh on the road from that position.[90]
[88] T262.
[89] T263.
[90] T263.
Mrs Walsh said that as she stood on the footpath outside the restaurant she was facing the city. She said the lighting was bright. The Capri lights were all on and all the shop lights were on. She did not have any difficulty seeing down the roadway. As Mr Walsh crossed the street she did not have any difficulty seeing him or seeing down towards the underpass.[91]
[91] T211.
Ms Lesia Iwaniw said it was ‘very bright’, but she did not know why it was so bright. She had no difficulty in seeing Mr Walsh from where she was standing. She could see him clearly before he started moving off the road and when he came to rest. She had no difficulty seeing down the roadway when she looked towards the city.[92]
[92] T232.
Dr Nowosilskyj said the lighting conditions were such that when he went to see what happened he could easily see Mr Walsh lying on the road.[93] When he was walking towards Mr Walsh he had no difficulty seeing down the road.[94]
[93] T476.
[94] T476.
Ms Caroline Mansueto attended the restaurant to collect some vegetables she had ordered. She described the lighting in the area of the collision as ‘very bright on one side of the road where the Capri Theatre is and very dark on the opposite side of the road’.[95] She said it is brighter where the cinema is and darker closer to the restaurant. She said that it becomes patchy, but could not recall where the patches were on that night. She said that she was able to observe Mr Walsh while he stood there, but she could not see the car from where she was standing.[96] Ms Mansueto said that the main source of light was from the cinema although there were some streetlights and a bit of lighting from the restaurant.[97]
[95] T241.
[96] T242.
[97] T243.
Mr Jonathon Dimian was with his brother and sister outside the Eggless Café on Goodwood Road, a little south, opposite the Capri Theatre.[98] He was lining up to enter the café and looking at the menu which is printed on the front wall of the café.[99]
[98] T249.
[99] T250-T251.
Mr Jonathon Dimian said the lighting in the area ‘seemed okay’. He had no difficulty making observations from where he was standing. He was able to see Mr Walsh from his position. He said lighting was maybe from streetlights and lights from the café.[100]
[100] T252.
Mr Jonathon Dimian had no difficulty seeing people who were rushing from the other side of the road towards the man who had been struck by the car.[101]
[101] T254.
Mr Jason Dimian was outside the Eggless Café. He was looking at the menu on the café wall on the opposite side of the Capri Theatre. When he heard a loud bang and turned around, he had no difficulty seeing the man in a red jacket. He said there was light in the area.[102]
[102] T273.
Ms Alice McIntyre was sitting at the outdoor dining area of the restaurant. She was facing south and could see diagonally across Goodwood Road in a southerly direction. She said the area was ‘quite well lit’. From her perspective she did not have any difficulty seeing the man who was hit by the car. She said there were no parts of the road from where she was viewing that she had any difficulty seeing.[103]
[103] T285.
Ms Caitlin Feehan was in the outdoor dining area on Gilbert Street. She had her back to the restaurant and could see Goodwood Road to her right and had a clear view looking down Goodwood Road.[104] After hearing a bang she saw a man on the road. She said that she could see him clearly.[105] The area was not extremely well lit but the Capri Theatre lights were very bright and were illuminating the street. She said there were streetlights and general lights from the bar and outside seating area. She had no difficulty seeing other people make their way across the road to the location of the man.[106]
[104] T294.
[105] T297.
[106] T297.
Mr Muness Ahadzadeh was at the restaurant with friends celebrating his birthday.[107] They had been inside the restaurant earlier but moved to the outside seating area that was directly on the corner of the restaurant.[108] He said the lighting was ‘pretty bright’. He could see a street light which was illuminating the road. Set apart from the streetlight there were lights from the restaurant itself, from the front bar and from the front of the restaurant. He said that the Capri Theatre was well lit.[109] He said that he did not have any difficulty seeing towards the south.[110]
Evidence of observations of weather conditions
[107] T300.
[108] T301.
[109] T305.
[110] T306.
Mr Shawyer said that it had been raining during the day but at that time of night there was no cloud cover.[111]
[111] T263.
Mrs Walsh was not conscious of it raining.[112]
[112] T217.
Ms Lesia Iwaniw said it was not raining. She said it may have rained but it was not raining at the time.[113]
[113] T234.
Dr Nowosilskyj described the weather at the time as ‘all right’.[114] He said it had rained a little bit before but was not raining at the time.[115]
[114] T476.
[115] T477.
Ms Mansueto said she believed it had been raining but could not recall if it was raining at the time of collision.[116]
[116] T243.
Mr Jonathon Dimian was unsure about the weather conditions. He thought it was a bit wet, as if it had rained on and off. He did not think it was raining at the time of the collision. He had no memory of standing outside the café in the rain.[117]
[117] T253.
Mr Jason Dimian said that it was not raining at the time.[118] Under cross-examination he agreed there was perhaps a light rain at the time he was waiting at the café. He was not 100% sure, but thought it was drizzling.[119]
[118] T274.
[119] T278.
Ms Alice McIntyre said that it had been raining earlier in the night but it had mostly stopped at the time of the incident and was ‘just sort of spitting’.[120]
[120] T285.
Ms Feehan said that at the time of the collision it was not raining. She said it had been raining earlier in the night.[121]
[121] T297.
Mr Ahadzadeh said that the weather was relatively clear. He could not recall if it had rained earlier in the day.[122] He said that he noticed that it had started raining slightly after he had gone on to the road to see Mr Walsh.[123] He said it started after the collision and continued as long as he was there that night for half an hour to an hour.
[122] T306.
[123] T307.
Under cross-examination Mr Ahadzadeh agreed that it was raining earlier in the night and started to get heavier as the night went on. He agreed that he had said on an earlier occasion that it had started to rain lightly and so he stood up at the restaurant on the Gilbert Street side with his back against the wall.[124]
Evidence of observations of road conditions
[124] T307.
Mrs Walsh said that the road was dry and she was not aware of having wet knees after kneeling on the road alongside her husband.[125] She said there was not that much water on the road.[126]
[125] T214, T217.
[126] T218.
Dr Nowosilskyj said the road was a little bit wet but it was not soaked.[127]
[127] T477.
Ms Mansueto said that road surface would have been wet but could not say how wet it was.[128]
[128] T243.
Mr Jonathon Dimian said that the road itself was a little bit wet.[129]
[129] T253.
Mr Jason Dimian said the road was a bit wet.[130]
[130] T274.
Ms McIntyre said that the road surface was wet.[131]
[131] T292.
Ms Feehan said the road was a bit wet from earlier rain.[132]
[132] T297.
Mr Ahadzadeh could not recall if there were reflections of vehicle headlights and taillights on the road surface before the collision. He agreed that there were such reflections after the collision.[133]
Evidence of what was heard
[133] T309.
Mrs Walsh said there was an ‘enormous bang’ when the car hit Mr Walsh.[134]
[134] T211.
Dr Nowosilskyj described the sound as a ‘loud bang’.[135]
[135] T476.
Ms Lesia Iwaniw heard an ‘enormous bang’ and saw Mr Walsh up in the air.[136]
[136] T230.
Ms Mansueto described the sound of the car colliding with Mr Walsh as a thudding sound, may be a bit like a squeal of a tyre, and some shattering of plastic.[137]
[137] T241.
Mr Jonathan Dimian heard a ‘loud bang’ as he waited outside the Eggless Café.[138]
[138] T251.
Mr Wilson Shawyer was inside the restaurant behind the bar during the evening when he heard a loud bang. He described the sound as a ‘metallic clang’. The windows of the restaurant were shut that night. The sound of the bang was the first thing that alerted him that something had happened.[139]
[139] T256-T257.
Mr Jason Dimian said he heard a loud bang coming from the middle of the road when he was outside the Eggless Café.[140] He and his brother looked to see where the loud bang was coming from.[141]
[140] T273.
[141] T273.
Ms McIntyre said that she heard a sound, ‘pretty loud like a thump’, which she further described as a crackling smashing sound.[142]
[142] T283.
Ms Feehan heard a loud bang which caused her to turn to her right. It was very loud and ‘quite jolting’.[143] The bang came from her right on Goodwood Road.
Evidence of what occurred
[143] T295.
Mrs Walsh said that Mr Walsh did not step off the kerb but off the ‘ramp’.[144] She saw him looking left and walking across the road. He walked to his right slightly to get around to the back of their car.[145]
[144] T220.
[145] T220.
Mrs Walsh disagreed that her husband dashed across the road.[146] Mrs Walsh said as Mr Walsh walked across the road there was a flash and Mr Walsh went up in the air and down to the ground and rolled. She was aware that a car had hit him, but at the time it was ‘just a flash’.[147] He was hit just before or just after the middle of the road.[148] The car was not going very fast and kept driving. She did not observe the headlights but the rear lights were on.[149] She did not see brake lights at any point. The car did not appear to slow down and did not stop at any stage. It kept travelling south towards the underpass.
[146] T221.
[147] T221.
[148] T213.
[149] T213.
Ms Iwaniw was on the footpath on Goodwood Road after leaving the restaurant. She said Mr Walsh was always in a rush. He started to cross the road to go to the car. He looked briefly to his right, towards the city and then turned to look south as he crossed the road. She saw him at about the centre of the road, heard an ‘enormous bang’ and saw Mr Walsh up in the air and then coming down. She saw her husband go to Mr Walsh to attend to him and she kept running behind a building calling out for someone to call an ambulance.[150] She did not know where the car had come from. She did not see the car hit Mr Walsh.[151]
[150] T230.
[151] T231.
Ms Iwaniw agreed that Mr Walsh went off quickly to cross the road.[152] He was walking quickly which was consistent with his habit. He was hobbling a bit because he had knee issues. He was not walking in a straight line, but walking at a slight angle, slightly to the right. She did not see any other cars.[153]
[152] T236.
[153] T237.
Dr Nowosilskyj said that all four of his group left the restaurant and were on the footpath on Goodwood Road. Mr Walsh was at the front of the group. As they walked closer to Goodwood Road, he saw Mr Walsh about to start crossing the road. Dr Nowosilskyj looked to go to his car and he heard a bang and looked back and Mr Walsh was not there. He then saw Mr Walsh’s body and ran over to him.[154] He did not see Mr Walsh get hit by the car.[155]
[154] T475.
[155] T476.
Although he could not see Mr Walsh on the road from where he was, he saw a whitish car further down the road travelling away from the city.[156] There were no other cars heading in that direction at the time. He did not see the car brake.[157]
[156] T476.
[157] T476.

Ms Mansueto said when she attended the restaurant she observed four people waiting to cross Goodwood Road. She said one of them ‘just ran out into the road’.[158] He was wearing something dark and a yellow hat. She described his movements as having, ‘sort of dashed across the road’. She said he was struck by a vehicle but she was unsure the direction from which the vehicle had come.[159] The vehicle did not stop after the collision.
[158] T240.
[159] T240.
Ms Mansueto said that she had kept an eye on the man because he looked like he was about to do something unsafe. She said that she had personally been struck by car as a pedestrian.[160] She became concerned as the man started running across the road. His friends seemed to stop and wait but he did not, he just ran across.[161]
[160] T245.
[161] T246.
Ms Mansueto said that the man was not a young guy, but that he moved with some speed. She said it was not just a stroll and he may have had a slight impediment. He seemed to launch himself at the road.[162] She could not recall any other cars from either direction at the time.[163]
[162] T247.
[163] T248.
Mr Jonathan Dimian turned and looked in the direction of the city after he heard the loud bang and saw a man in the air falling to the ground. He thought he may have seen the last moments of the car hitting the man. He was pretty sure it was a white SUV travelling south in his direction.[164] He could not recall if its headlights were on. The car did not appear to stop or slow down or brake at all. He said it sped off past his position towards the underpass.[165]
[164] T251.
[165] T252.
Mr Jason Dimian said that when he heard a loud bang coming from the middle of the road he turned around and saw a man in a red jacket ‘kind of in the air slightly and fall’.[166] The bang was caused by a white car which looked like an SUV. It was travelling south towards the underpass from the direction of the city. He said it was moving quickly. The car did not stop and did not appear to slow down.
[166] T273.
Ms McIntyre said that prior to hearing a pretty loud thump and a crackling smashing sound, she saw a couple crossing the road. She said the woman was wearing black and the male was wearing blue jeans but could not recall much else.[167] She said that the woman was one to three metres behind the man on the roadway itself. The man was walking diagonally across the road and a white car came in and hit him. She said he was thrown across the lanes of traffic. It was an SUV type vehicle and it was at that point she heard the loud bang.[168] Ms McIntyre said the white car did not stop at all. She did not maintain observations on the white car.[169]
[167] T283.
[168] T284.
[169] T285.
Under cross-examination Ms McIntyre agreed that the man crossing the road had his back towards the oncoming traffic.[170] She agreed that she said in her statement that the woman who was crossing was three metres in front of him.[171] She cannot now recall where the woman was positioned. She now has a clear memory of the man being hit and that he went onto the bonnet of the car.[172] She said that the man was hit when he was in between the two lanes travelling south.[173]
[170] T287.
[171] T288.
[172] T290.
[173] T291.
Ms Feehan turned to her right when she heard a very loud bang from Goodwood Road and saw a white SUV driving away and a man lying on the road.[174] She remembers quite clearly that she did not see any brake lights on the car. The car did not appear to slow down or stop at all. The car drove away and went under the underpass.[175] When she first saw the man on the road there was no one else there and then a couple of people ran onto the road. She could see the man clearly on the road before others ran out.[176]
[174] T295.
[175] T296.
[176] T297.
Mr Ahadzadeh said that as he was standing on the corner of the restaurant, he saw a red jacket and heard a thud. He said he checked on Tony and called the police or asked someone else to call the police and an ambulance. He remembers looking south down the road and seeing a car in the distance. It was a white SUV. It did not have its ‘taillights’ on. He did not see the vehicle stop and it did not appear to slow down.[177]
[177] T302.
Mr Ahadzadeh could not say exactly where the man crossing the road came from. His first memory of seeing the man was on the road. He thought the man was on the left side of the road going south.[178]
[178] T303.
When he first saw the man he believes he was between the two lanes travelling south in the middle of the left lane.[179]
[179] T304.
Under cross-examination Mr Ahadzadeh said he did not see the man walking out onto the road prior to the collision. He agreed he had caught a glimpse of him prior to him going onto the ground.[180]
Assessment of witnesses at the scene of the collision
[180] T308.
I accept that these witnesses who gave evidence of the observations at the scene of the collision were truthful. The witnesses were honest and did their best to assist the court. They were reliable in relation to their observations of the prevailing lighting, weather and road conditions at the time of the collision and their observations as to what occurred. In my view, the differences in the evidence of the witnesses on these issues can be explained by the subjectivity of language involved in the assessment of the factors relating to the lighting, weather and road conditions.
I note that witness Mr Muness Ahadzadeh said in his evidence that after the collision, he went to assist the victim and stopped traffic that was approaching Mr Walsh’s position as he lay on Goodwood Road. He described that position as being between the two southbound lanes on Goodwood Road closest to the restaurant. It is clear that Mr Ahadzadeh is incorrect about that aspect of his evidence and that after the collision, Mr Walsh was on the northbound lane on Goodwood Road, close to the western kerb.
I do not consider that this error on the part of Mr Ahadzadeh affects the reliability of his evidence generally. The incident must have been shocking to witness and the details about where he was as he rendered assistance in an emergency might well be unclear while his attention was focused on the immediate task of stopping traffic. By contrast his evidence relating to his observations at the scene and the collision itself is clear and generally consistent with the observations of other witnesses. I accept those aspects of his evidence are reliable.
Ms McIntyre said in evidence that a woman was crossing two to three metres behind the man struck by the car. She also said that she had made a statement to police in which she had said that a woman was crossing three metres in front of the man struck by the car. However, she said in evidence she does not have a clear memory of the woman. She maintained her evidence about seeing the man struck by the car and thrown into the air. I accept that Ms McIntyre’s evidence about seeing a woman cross the road with Mr Walsh is incorrect. Nonetheless I accept her as a reliable witness to the extent that her evidence fits with other evidence which is not disputed.
Collision reconstruction evidence
Elliott McDonald – damage to the Kia
An affidavit dated 6 July 2021 together with an annexure prepared by Elliott McDonald, a Senior Vehicle Examiner attached to the Reconstruction and Technical Examination Unit of the Major Crash Investigation Section, was tendered by consent as Exhibit P18. Mr McDonald conducted an examination of the Kia involved in the collision with Mr Walsh and prepared a written report. The report was annexed to his affidavit and forms part of Exhibit P18. The report contains 47 photographs of the vehicle taken at the time of its examination by Mr McDonald.
In his report Mr McDonald concludes that in his opinion the vehicle had been in reasonable condition prior to the collision and he could find nothing mechanically wrong that would have contributed towards or caused the collision.[181]
[181] Report of Elliott McDonald, page 18.
The report notes the damage to the vehicle including;[182]
[182] Ibid, page 9.
·the front number plate was creased,
·the left front corner of the front bumper bar was scuffed and scratched,
·the right driving light surround was misaligned,
·the right front corner of the front bumper bar was forced out and was misaligned,
·the right headlight lens was smashed and broken,
·the right front indicator flow was smashed,
·the right headlight assembly was forced back,
·the right front guard was forced back.
The damage to the front right of the vehicle is shown in photograph 1 on page 10 of the report.
The windscreen of the Kia was in good condition.[183] The windscreen wiper blades were in reasonable condition.[184]
[183] Ibid, page 15.
[184] Ibid, page 16.
The report notes that Mr McDonald was able to carry out a short road test where the vehicle braked, steered and performed well.[185]
Reconstruction conducted by Sergeant Mark Fulcher
[185] Ibid.
Sergeant Mark Fulcher (Sergeant Fulcher) is stationed at the Major Crash Investigation section. His role involves providing expert evidence about crash dynamics and reconstruction of crash scenes. He has attained relevant qualifications in relevant fields associated with this work and participates in continuing education in the area including training provided by police and external educational and professional bodies. He has given evidence in numerous proceedings before the court in the area of crash dynamics and reconstruction.
Sergeant Fulcher’s qualifications to give expert evidence in the trial were not challenged.
Examination of the scene
Sergeant Fulcher attended the crash scene at about 11:50 p.m. on 30 June 2021 and remained there for about three hours.[186] During that time he examined the scene from about 100 to 150 metres to the north and about 50 to 100 metres past the point of the collision. He was looking for evidence that may have been left by the vehicle, including tyre marks and brake marks as well as scuff marks and debris which would indicate the point of impact.
[186] T339.
He was satisfied that the point marked A on Exhibit P1 was the approximate point of the collision. The collision occurred in the right southbound lane of Goodwood Road. This can be determined from the CCTV footage.[187] It is not possible to see precisely how far from the centre line of the road Mr Walsh was when he was struck by the vehicle.[188]
[187] T340.
[188] T340.
Sergeant Fulcher said there was reasonable visibility on the night and he could see everything. When standing 100 metres and looking towards the point of the collision visibility was good. All the investigators and people on the footpath could be seen.[189] The darker areas or shadow on the road could be seen. There was still visibility in that area but it was quite dark.[190] Visibility in the darker area improved as one got closer.[191]
[189] T342.
[190] T342.
[191] T343.
When he arrived it was overcast and the road was damp but there was no running water on the road. It had been raining previously but was not raining when he arrived. It rained while he was present.[192]
[192] T343.
Sergeant Fulcher said that he was aware from an inspection of the accused’s vehicle conducted by Mr McDonald that there was nothing mechanically wrong with the car, a Kia Sportage, that might have contributed to the collision.[193]
Collision dynamics
[193] T345.
Sergeant Fulcher stated the collision dynamics were that the Kia was travelling south in the right lane of Goodwood Road and the pedestrian was crossing Goodwood Road from east to west. The pedestrian walked steadily across the first lane and just before impact he hastened his pace and was then struck by the vehicle. His understanding was based in part on viewing CCTV footage obtained from the restaurant which accorded with the observations at the scene.[194]
[194] T346.
Sergeant Fulcher was able to use the CCTV footage from the two cameras fixed to the restaurant to assist in the reconstruction of the collision.[195]
[195] T347.
He calculated the average speed at which Mr Walsh crossed Goodwood Road as 1.25 metres per second. Mr Walsh then moved a bit quicker just before impact.[196] The speeds were calculated using the frame speed of the video recording (an average frame rate of 25 per second) and the distance covered being the distance between the verandah poles at the restaurant.[197]
[196] T347.
[197] T349-T351.
Using the same methodology, Sergeant Fulcher calculated the speed of the Kia driven by the accused leading up to and at the point of impact. He checked the accuracy of methodology by conducting numerous controlled and recorded drives past the restaurant CCTV using a police vehicle with a calibrated speedometer and simulating the driving position of the Kia.[198]
[198] T348-T357.
The speed of the Kia was calculated at 45 kph between the two measuring points on Goodwood Road and at the point of impact.[199] He said that it was likely travelling slightly faster, but that 45 kph was the bottom of the range of the calculated speed.[200]
[199] T358.
[200] T360-T361.
Sergeant Fulcher calculated the duration Mr Walsh was on the road using the same CCTV by examining the recording and counting each frame from the time Mr Walsh stepped off the footpath on to the drop kerb.[201] Sergeant Fulcher confirmed that the step off point was at about the position marked X on the scale plan.[202]
[201] T362.
[202] T363.
Mr Walsh was on the road for 6.28 seconds before he was struck by the Kia.[203] I note at the estimated speed with which the accused’s car was travelling (45 kph), her car would have been about 75 metres from the point of impact. If the accused’s car was travelling at 48 kph her car would have been about 80 metres from the point of impact.
[203] T363.
Sergeant Fulcher calculated the time Mr Walsh was in lane 3 on the scale plan as 2.2 seconds.
He could see from the CCTV recording that the approaching Kia had its headlights turned on.[204]
[204] T364-T365.
By examining the CCTV recording frame by frame, he calculated that the headlights from the Kia directly illuminated Mr Walsh’s legs for 2.4 seconds before Mr Walsh was struck by the Kia.[205]
[205] T365.
The vehicle had not changed its speed before impact.[206]
[206] T365.
Sergeant Fulcher examined both CCTV recordings for any indication that the Kia had slowed down at all before it struck Mr Walsh. He did not see the brake lights come on or the front of the vehicle dip, which is characteristic of heavy braking.[207]
Visibility and conspicuity
[207] T366.
Sergeant Fulcher explained the concepts of visibility and conspicuity. He said visibility is the degree to which an object is visible to the eye without the aid of any object or assistance. Conspicuity is how conspicuous an object is with regard to its surrounds. He explained that a bright object, for example a yellow jumper, might stand out against its surroundings. Alternatively, a camouflaged shirt might not be so conspicuous in front of a bush because the contrast is similar.[208]
[208] T367.
He said factors such as whether it is daytime or nighttime and the clothing worn by a pedestrian will affect both visibility and conspicuity.[209]
[209] T368.
Sergeant Fulcher said that for nighttime recognition one must consider the totality of clothing, not just the individual items of clothing because it is the whole object that has to be identified.[210]
[210] T368.
When shown a photograph of the red jacket worn by Mr Walsh (photograph 102 of Exhibit P11) Sergeant Fulcher said it would be difficult to say how conspicuous it was because the object has to be in contrast to its surrounds and it may not look so bright at nighttime.[211] Sergeant Fulcher commented on the conspicuity of other items worn by Mr Walsh shown in various photographs contained in Exhibit P11.
[211] T369.
Sergeant Fulcher expressed the opinion that the clothing worn by Mr Walsh comprising the yellow hat, red jacket and jeans would be ‘fairly conspicuous’ in the position where he is seen in photograph 34 of Exhibit P2, on the side of the road on the footpath and under the bright lights.[212] He said that in a position in the middle of lane 3 with ambient light only and no headlights Mr Walsh would not have been as conspicuous as he was in the position shown in photograph 34 of Exhibit P2. He said that in the middle of lane 3 with headlights Mr Walsh would ‘definitely’ have been conspicuous to the same degree as the position Mr Walsh was in on the side of the road as shown in photograph 34 of Exhibit P2.[213]
[212] T370.
[213] T370.
Sergeant Fulcher said that the likelihood of a driver detecting objects increases if there is movement, including at night if there is conspicuity. He said objects moving at night are easier to see than stationary objects.[214]
Driver hazard detection
[214] T370.
Sergeant Fulcher addressed the issue of driver hazard detection. He said that studies and literature differentiate immediate hazards and potential hazards. Driver responses generally change based on an assessment of immediate or potential hazards.[215] He described a potential hazard as something that may be crossing into the path of the driver but has more than five seconds to contact.[216] He gave an example of a potential hazard as a pedestrian on a road, but not in the driver’s lane. He said that often a pedestrian will cross the road, wait for the car to pass in the other lane and then continue on.[217] He said a driver may see someone about to cross, is aware of their presence and acts accordingly for the potential hazard of the pedestrian moving into their lane.[218] He said typically the response by drivers is that they will reduce their speed, but only by a small amount (about five kph) or they may move away from the pedestrian, but again only by a small distance (about 20 to 27 centimetres).
[215] T371.
[216] T371.
[217] T372.
[218] T372.
Sergeant Fulcher described the typical responses by drivers to a pedestrian who poses an immediate hazard. He said an immediate hazard requires an emergency response which is either braking, steering or a combination of both. He said very rarely do drivers accelerate.[219]
[219] T372.
He said that he made no observations of any of those responses in this case.[220]
Perception response time
[220] T373.
Sergeant Fulcher explained that the concept of perception response time is the time between a driver initially perceiving an immediate hazard, requiring an emergency response, to the time that the vehicle responds to the reaction, in other words, driver input.[221] The perception response will only come in when it is an immediate hazard. He said when there is a potential hazard, there is no perception response because one does not actually do anything unless it becomes an immediate hazard.[222]
[221] T373.
[222] T373.
The first step is the detection and recognition phase. The driver identifies that there is an immediate hazard, for example, seeing a pedestrian ahead. Once there is detection and recognition, the perception response timer commences.
The next step is the perception reaction. This involves the decision by the driver to do something otherwise there will be a collision.[223] This involves a decision, for example, to apply the brakes.[224]
[223] T374.
[224] T374.
Sergeant Fulcher said the next step is the response. He said for example that would be the act of the driver moving his foot to the brake pedal, applying the brakes and the vehicle responding to the braking. Alternatively, it might involve the driver turning the steering wheel and the vehicle responding.[225]
[225] T374.
Sergeant Fulcher said there were studies conducted which attempted to calculate perception response times for drivers including perception responses to pedestrians which involved nighttime conditions.[226]
[226] T374-T375.
Studies differentiated response times between cued sections of road at night and uncued sections. A cued section refers to roads where there is less information to process and the driver’s alertness is not as heightened. The example given was of a straight level section of country road.[227]
[227] T375.

There is no dispute that the accused was the driver of the vehicle involved in a collision on Goodwood Road on 30 June 2021.
Did the accused drive without due care or attention?
The defence disputed that the accused was driving without due care or attention. As I have already noted, the defence case is that the evidence does not exclude the reasonable possibility that the accused could not have detected Mr Walsh until it was too late to avoid the collision and accordingly her conduct was not criminal.
I have found earlier in these reasons that the accused failed to meet the standard of care when driving required by the law, namely that of a reasonably prudent driver in the situation of the accused, by failing to keep an adequate lookout. The accused was driving without due care and attention.
Although not forming part of the offence now under consideration, I went on to find that the accused’s driving was so grossly defective that it posed a real danger to any person in the area, and she was therefore driving in a manner dangerous.
I rely on the reasons stated earlier to support the conclusion that the accused drove without due care and attention and find this element of the offence proven.
Did the accused’s failure to exercise due care or attention cause the death of a person?
I have found in these reasons that the failure of the accused to keep a proper lookout was a substantial cause of Mr Walsh’s death.
I rely on that finding to conclude that this element of the offence is proven.
Did the accused fail to fulfil her statutory obligations in relation to that incident?
The statutory obligations on the driver of a vehicle involved in an accident in which a person is killed or injured are set out in s 43(1) of the Road Traffic Act which provides that;
(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 themself 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 the driver's blood or oral fluid.
It is not disputed that the accused did none of those things. Witnesses at the scene of the collision observed that the accused did not slow down or stop following the collision. The accused gave evidence confirming that she did not stop and give assistance and that she went straight home. She did not contact the police within the time required under s 43 the Road Traffic Act.
She gave evidence that she contacted a solicitor the following morning. It is an agreed fact that arrangements were made through her solicitor the following morning to speak with the police about the incident.
I find therefore this element of the offence proven.
Has the accused established a defence to the charge?
Section 43 of the Road Traffic Act provides a defence to the charge. Section 43(3) relevantly provides that;
(3) It is a defence to a charge of an offence against subsection (1) to prove that—
(a) the defendant was unaware that the accident had occurred and that the defendant's lack of awareness was reasonable in the circumstances;
In order to establish the defence, the onus is on the accused to establish on the balance of probabilities that she was unaware of the collision and her lack of awareness was reasonable in the circumstances.
I am not satisfied that the accused was unaware of the collision for reasons that can be summarised as follows.
·The objective evidence at trial about the collision strongly supports the conclusion that the accused must have been aware at the time of or immediately after the collision that a significant collision occurred which involved a pedestrian,
·The opinion evidence of both Sergeant Fulcher and Dr Anderson support a conclusion that the accused would have seen Mr Walsh in the moment before the collision and at the time of the collision,
·The accused’s evidence about the collision, her perception of what had occurred and her subsequent conduct was inherently implausible and her evidence on those issues vague and unpersuasive.
The objective evidence discloses that Mr Walsh was struck by the front of the accused’s car just to the right of its centre. At that time Mr Walsh was standing and would have been fully illuminated by the headlights of the accused’s vehicle. The limitations of the illumination in the area and the visibility at the scene, such as they were, and other environmental factors such as the weather, the road conditions and glare from oncoming traffic would have played no role, or a negligible role, in her capacity to see Mr Walsh at that point.
The opinion evidence of Sergeant Fulcher and Dr Anderson to which I have previously referred, was that Mr Walsh would have been conspicuous to a driver in the position of the accused when he was illuminated 2.2 seconds from the point of collision.
Dr Anderson agreed that before the impact phase, Mr Walsh would have been illuminated in the headlights and he would have been conspicuous because of his movement and his clothing.[723]
[723] T765.
The evidence of Dr Anderson was that although the collision phase would have occurred very quickly from the driver’s perspective, the driver would have been able to perceive something had gone across the bonnet of the car. He agreed that the driver would have been able to perceive that it was a person.[724]
[724] T765.
Several of the witnesses at the scene of the collision gave evidence about the noise made by the impact between the accused’s vehicle and Mr Walsh.
Mrs Walsh described it as an ‘enormous bang’ when the car hit her husband.[725]
[725] T241.
Dr Nowoliskyj said he heard a ‘loud bang’.[726]
[726] T476.
Ms Iwaniw described the sound as an ‘enormous bang’.[727]
[727] T230.
Ms Mansueto said she heard a ‘thudding sound’ and ‘shattering of plastic’.[728]
[728] T241.
Mr Jonathan Dimian said he heard a ‘loud bang’ as he waited outside the Eggless Café.
Mr Jason Dimian said he heard a ‘loud bang coming from the middle of the road’ while he was outside the Eggless Café.
Mr Shawyer who was inside the restaurant with the windows and doors closed said he heard a ‘loud bang’ which he described as a ‘metallic clang’.[729]
[729] T256.
Ms McIntyre said she heard a ‘pretty loud thump’ which she described as a ‘crackling smashing sound’.[730]
[730] T283.
Ms Feehan heard a ‘loud bang’ which she said was ‘very loud and quite jolting’.[731]
[731] T295.
Dr Anderson said that he had indirect experience about the sound that is made when a vehicle is travelling at about 48 kph when it collides with a pedestrian. He said he has operated a pedestrian impact laboratory involving firing objects in the form of a head or legs at cars to test the protection provided by the vehicle. He said he has run hundreds of such tests and knows what that sounds like. He said it is very loud. He said the bonnet is like the skin of a drum and sounds as one would expect if you hit a metal drum.[732]
[732] T760-T761.
Dr Anderson said that he would expect the driver of the vehicle to be aware of that bang and aware of it being very loud or significant.[733]
[733] T765.
The evidence supporting the conclusion that the accused was aware at the time of the collision that she was involved in a significant collision with a pedestrian was overwhelming.
The accused’s evidence on the other hand, that she was unaware she was involved in a significant collision and that it involved a person, was implausible.
The accused said that she was driving in the right-hand lane and saw what she perceived as a shadow on the far-right hand side of her lane. In the context of her evidence that observation was at or immediately before her vehicle struck Mr Walsh.
By that time Mr Walsh had been in the headlights of the accused’s vehicle for about two seconds he was conspicuous, without obstruction and there was little or no impairment to her visibility. The observation she described as a shadow could only have been Mr Walsh and on the evidence that would have been plain to the accused.
In my view the evidence establishes that the accused must have seen that the object in her field of vision was a person. The accused must have been aware that the person was struck by her vehicle and thrown across the bonnet of her vehicle causing a very loud and audible bang. She would have been aware from those factors that her vehicle struck the person with considerable force and likely causing the person serious injury or death.
I reject as a reasonable possibility the accused’s evidence that she was unaware she had struck a pedestrian.
The account that the accused gave about her state of mind when she drove home and after she arrived at home is in my view implausible and also unconvincing. Her evidence was inconsistent, and she prevaricated over material issues including her observations about the extent of the damage to the vehicle, the quantity of red wine she consumed after returning home and whether she and her boyfriend inspected the damage to the vehicle before they went to bed.
I do not accept her evidence that after inspecting the damage to the vehicle she did not regard the incident that occurred as serious. The accused said that she did not look at the front of the car because she could not access that area of the carport. However, photograph 19 in Exhibit P2 of the damage to the vehicle including the bonnet and the front side of the vehicle, which were accessible to the accused, reveal extensive damage. This would have been plainly visible to the accused and consistent with the vehicle having struck a substantial object.
The accused told the court that at the time of the incident she perceived that there had been a clash of mirrors. When she looked at the damage, she thought she had obviously been in an accident of some sort but did not give it a thought as to whether it was a pedestrian. She said her ‘train of thought went to having to deal with it tomorrow as in before I went to work. Not before I went to work, I would have to deal with it tomorrow as a whole concept’.[734]
[734] T569.
When asked in cross-examination whether she thought it was something more serious she said, ‘Not at that point, no’.[735] However, there was no damage to the mirror. She said she appreciated then that the incident did not simply involve a clash of mirrors.[736]
[735] T569.
[736] T601.
She said she was aware something had happened but ‘did not think it was serious’ and ‘thought everything was okay’.[737] The accused then said that after seeing the damage she knew it was not the mirror and ‘felt it was more serious than a mirror collision’.[738] However, having realised that, she did not think to go back to the scene of the collision.[739]
[737] T599.
[738] T601.
[739] T602.
The accused said the incident came up in a discussion with her boyfriend as they sat on the couch before going to bed. That would have been an unusual thing to have occurred given her evidence that she did not think the incident serious and thought ‘everything was okay’. The accused explained that it had come up with her boyfriend ‘because we looked at my car’.[740]
[740] T591.
The accused later on recanted her evidence about the reason for the subject coming up with her boyfriend. She said in her evidence that she could not recall if she had looked at the damage with her boyfriend before the subject came up on the couch.[741] The following day when cross-examination resumed she said that she went outside to see the damage to the car when she woke up in the morning at around the time she called her employer at 5:28 a.m.
[741] T591.
I do not accept that the accused discussed the incident with her boyfriend that night some time before they went to bed at about 1:30 a.m., believing the incident was not serious and could be dealt with the next day. In my view, the accused would have been aware that something very serious had occurred, if only because of the extensive damage to the bonnet and front fender of her vehicle when she spoke to her boyfriend. When one takes into account the loud sound caused by the deceased’s body being struck by the car, the conclusion must have been that she was involved in a serious collision. I do not accept her evidence that she was not so aware.
The accused said she first became aware of her involvement in a serious collision when she saw an online news report the following morning about a hit and run crash at Goodwood involving a pedestrian. I find it inherently implausible that the accused, apparently having no thought that she was involved in a serious collision, would have been checking local news stories online sometime before 5:28 a.m. and to have happened across an article related to the collision in which she was involved.
I reject as a reasonable possibility the accused’s evidence about not being aware of the collision until the following morning.
In conclusion, I am not persuaded on the balance of probabilities that she was unaware of the collision.
If I am incorrect in my assessment, the only available explanation for the accused not being aware that she was involved in a serious collision involving a pedestrian, given the objective evidence to which I have referred, is her level of intoxication.
In my view, if the accused was unaware of her involvement in a serious collision involving a pedestrian because of the effects of alcohol, that would not be reasonable and the accused would therefore not have a defence to the charge.
Accordingly, I find that the offence of failing to stop and failing to meet statutory obligations after an accident in which a person was injured or killed has been proven against the accused beyond reasonable doubt.
Verdict
Count 1 - Causing death by dangerous driving: Guilty.
Count 2 - Leaving an accident scene after causing death by careless driving: Guilty.
Appendix 1 – A4 copy of scaled plan
Appendix 2 – Agreed facts
Dates of Birth
1. The accused, Lauren Willgoose was born on 22 January 1992.
2.The deceased, Anthony Walsh was born on 1 January 1951.
Accused’s Home Address
3.On and around 30 June 2021 Ms Willgoose lived at unit 8, 22 Mathias Avenue Cumberland Park.
Height and Weight
4.On and around 30 June 2021 Ms Willgoose was 161 cm tall and weighed about 66 kg.
Arrest of Accused
5.Ms Willgoose was arrested at 10:33 a.m. on 1 July 2021 at the offices Caldicott + Isaacs Lawyers located at 53 Wright Street Adelaide. Ms Willgoose, through her solicitor, made arrangements to voluntarily speak with police at that time and location.
6.After her arrest the following exchange took place between attending police officers – Officers Kristen McLoughlin and Craig Wutke, and Ms Willgoose and her then solicitor Case Isaacs:
a)Ms Willgoose was informed by police that:
Police from Major Crash Investigation sections were ‘investigating a collision that occurred at 9:55 p.m. on Wednesday 30 June 2021 on Goodwood Road at Goodwood. The collision involved a Kia Sportage, South Australia registration S529 AZH’
b) Ms Willgoose was then asked:
‘Can you tell me who the driver of that vehicle was at that time?’
c)After being informed she was obliged to answer the question by her then lawyer, Ms Willgoose responded:
‘I was.’
Accused’s Urine Sample
7.Following her arrest, Ms Willgoose was taken to the city watchhouse where at 12:55 p.m. (12 July 2021) (sic) a forensic procedure was undertaken. At 1:00 p.m. Ms Willgoose provided officers with a urine sample.
8.The urine sample, given PPMS number 22/B13406-4 was seized, securely stored, and then submitted for expert analysis at Forensic Science South Australia.
9.Analysis of that urine sample revealed 0.027% alcohol was detected in the urine.
10.A blood sample was also taken during the course of that forensic procedure, however it was not analysed.
Deceased’s Blood Sample
11.A blood sample was taken from the deceased at 10:49 p.m. on 30 June 2023 (sic) at the emergency department of the Royal Adelaide Hospital. That sample was seized, securely stored and then submitted for expert analysis at Forensic Science South Australia.
12.Analysis of that blood sample revealed 0.145% alcohol was detected in the blood (not less than 0.145 grams of alcohol per 100 millilitres of blood).
Phone Records
13.Telephone records for Ms Willgoose’s mobile telephone reveal Ms Willgoose made and received the following telephone calls/SMS to the corresponding people, at the corresponding times, for the corresponding durations:

992   Row#

993   Telephone Number

994   Time of Call/SMS

995   Duration of call

996   1.

Call made to:

Tracey Visintin

At the time of the call Ms Visintin was a lawyer and partner of the law firm Fenwick Elliot Grace - the accused’s place of employment at

that time

997   1/07/21 at 5:28:12

1418 seconds

(23 minutes and 38 seconds)

998   2.

SMS sent to:

Richard Armour a lawyer from the law firm Armour Allen Lawyers

999   1/07/21 at 6:04:07

1000    SMS

1001    3.

Call made to:

James Caldicott a Lawyer from Caldicott + Isaacs Lawyers

1002    1/07/21 at 7:12:32

1003    152 seconds

1004    4.

Call received from:

Casey Isaacs a lawyer from Caldicott + Isaacs Lawyers

1005    1/07/23 at 7:27:11

1006    421 seconds

SAPOL Media Releases
14.Between the time of the collision and 7:30 a.m. on 1/07/2023 South Australia Police made two media releases in relation to this matter. The details of each of those releases, and the corresponding times were as follows:
Media Release 1
30/06/2021 @ 10:30 p.m.
Title: Goodwood hit and run
Police are at the scene of a hit and run crash this evening at Goodwood.
Just before 10pm tonight (Wednesday 30 June), police and emergency services were called to Goodwood Road after a car hit a pedestrian and then left the area.
It is alleged a white Jeep Compass crashed into a pedestrian and sped off heading south on Goodwood Road.
Goodwood Road has road been closed to all north bound traffic between Gilbert Street and Victoria Street. Major Crash Investigators are making their way to the scene.
Police ask anyone who may have any information that may assist the investigation or who may have dashcam of the incident to contact Crime Stoppers on 1800 333 000 or online at – you can remain anonymous.
Media Release 2
01/07/2021 @ 06:39 a.m.
Title: Update: Goodwood hit-run
Police are investigating a hit and run crash at Goodwood last night.
Just before 10pm Wednesday 30 June, police and emergency services were called to Goodwood Road after a car hit a pedestrian and then left the area.
It is alleged a white Jeep Compass crashed into a pedestrian and sped off heading south on Goodwood Road.
The pedestrian a 70-year-old man from Goodwood was taken to the Royal Adelaide Hospital where he remains with life threatening injuries.
Goodwood Road was closed to all north bound traffic between Gilbert Street and Victoria Street for several hours while Major Crash Investigators examined the scene.
Police ask anyone who may have any information that may assist the investigation or who may have dashcam of the incident to contact Crime Stoppers on 1800 333 000 or online at – you can remain anonymous.
The media section of South Australian Police released that information on its public website and social media platforms, and it provided that information to various media outlets for their publication. It was then a matter for the various media outlets to determine if, when and how they reported on or published that information.

992 Row#	993 Telephone Number	994 Time of Call/SMS	995 Duration of call
996 1.	Call made to: Tracey Visintin At the time of the call Ms Visintin was a lawyer and partner of the law firm Fenwick Elliot Grace - the accused’s place of employment at that time	997 1/07/21 at 5:28:12	1418 seconds (23 minutes and 38 seconds)
998 2.	SMS sent to: Richard Armour a lawyer from the law firm Armour Allen Lawyers	999 1/07/21 at 6:04:07	1000 SMS
1001 3.	Call made to: James Caldicott a Lawyer from Caldicott + Isaacs Lawyers	1002 1/07/21 at 7:12:32	1003 152 seconds
1004 4.	Call received from: Casey Isaacs a lawyer from Caldicott + Isaacs Lawyers	1005 1/07/23 at 7:27:11	1006 421 seconds