RICHARDSON v Police - [2012] SASC 20

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RICHARDSON v POLICE
[2012] SASC 20
Judgment of The Honourable Justice Kelly
17 February 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS
Appeal against conviction - appellant found guilty of one count of aggravated driving without due care contrary to s 45(3) of the Road Traffic Act 1961 (SA) - aggravation was caused by the serious harm suffered by the victim - appellant appealed on the grounds that the Magistrate erred in finding the charge proved against the appellant in light of evidence which suggested lighting on victim’s tractor was defective - whether the Magistrate gave due weight to the evidence - whether the Magistrate correctly assessed the totality of the evidence.
Held: appeal dismissed - Magistrate correctly assessed all the evidence before the court and gave due weight and consideration to the evidence of the appellant - appellant’s driving not to the standard required of a reasonably prudent driver in the circumstances - Magistrate’s findings justified on the evidence - no basis for appellate court to interfere.
Road Traffic Act 1961 (SA) s 45(3), referred to.
Police v Melisi (2010) 106 SASR 105, applied.

RICHARDSON v POLICE
[2012] SASC 20
Magistrates Appeal: Criminal
KELLY J.

On 13 March 2008 a Prime Mover towing two trailers driven by the appellant collided with the rear of a tractor towing a grape harvest tote bin trailer driven by Mr Honey. The collision occurred on a section of the Sturt Highway near Kingston-on-Murray. Mr Honey suffered severe head and abdominal injuries which resulted in permanent cognitive and motor dysfunction.
The appellant was charged with driving without due care aggravated by the fact that Mr Honey suffered serious harm. After a trial the Magistrate convicted the appellant. He now appeals that conviction.
The issue on appeal is whether the Magistrate was correct in finding the charge of aggravated due care proved beyond reasonable doubt in light of the Magistrate’s factual findings, in particular that the prosecution failed to prove beyond reasonable doubt that all of the lights on Mr Honey’s tractor and tote bin were illuminated. It was submitted by the appellant that in these circumstances the evidence was not capable of satisfying the Court beyond reasonable doubt. Specifically, the appellant submitted that the Magistrate was wrong to conclude that:
·had the appellant driven with headlights on high beam he would have seen the tractor in time to avoid the collision;
·the appellant’s speed was excessive given the characteristics of the road and dimensions and the weight of his vehicle;
·the appellant did not brake at all; and
·the appellant failed to guard against a foreseeable risk.
Factual Background
Before discussing the appellant’s argument it is helpful to set out the relevant facts.
The collision occurred at approximately 12.45 am on 13 March 2008. The appellant was driving a Kenworth Prime Mover in a westerly direction on a section of the Sturt Highway near Kingston-on-Murray. Mr Honey had been driving a tractor towing a grape harvesting tote bin in the same direction ahead of the appellant’s vehicle. The appellant crashed into the rear of the tractor driven by Mr Honey.
The speed limit on that section of the highway was 110 kilometres per hour, however the appellant was permitted to drive no faster than 100 kilometres per hour given the nature of the vehicle he was driving. The weather conditions were fine although it was a dark night. The road leading up to the collision is significant to understand how the crash occurred. Just past Barmera travelling west there is a causeway that leads up to a bridge which crosses the Murray River. The causeway itself is wide but winding and carries only a single lane of traffic in both directions. The bitumen road surface narrows as it leads up to the bridge and there is no dirt shoulder, verge or run‑off area on the bridge. The bridge also allows for one lane of traffic. There is a raised concrete path and gutter on the outer edge of the lanes across the bridge. From the western end of the bridge the road starts a steady incline which gradually levels out approximately 100 metres from the point at which the collision occurred. At the top of the incline the road begins a sweeping right hand bend.
After the hearing, by consent, a further declaration was tendered from Brevet Sergeant Mark Fulcher who returned to the scene of the collision and measured some distances which had not been previously apparent from material tendered at trial. Both counsel invited the Court to use these measurements to better understand the evidence. I am indebted to the parties for the assistance provided by those further measurements as they provide an accurate context in which to assess, in particular, the evidence given by the appellant about his driving on the relevant section of the highway, and the view ahead at various vantage points as he crossed the bridge. The bridge itself is 246 metres long. The distance from the eastern side of the bridge to the approximate point of the collision is about 856 metres.
The tractor driven by Mr Honey had been travelling along the highway as part of a three vehicle convoy conducting grape harvesting in the area. The highway is regularly used by grape harvesting convoys to travel between vineyards during grape harvesting.
However at the time of the collision the tractor driven by Mr Honey had fallen behind the rest of the convoy and was separated by at least 500 metres. Normally, tractors and vehicles part of these convoys are well lit with brake lights, indicator lights, headlights and flashing dome lights. However on the night in question there was considerable doubt about what lights were actually operating on the tractor and the tote bin being driven by Mr Honey. There were varying accounts given by the various eye witnesses and in the end the Magistrate was not satisfied beyond reasonable doubt that Mr Honey’s tractor and tote bin were properly illuminated. Her finding at [68] was:
Prosecution cannot prove beyond reasonable that all lights on Mr Honey’s tractor were illuminated given the suggestion that the tractor was poorly lit. However I do not accept that Mr Honey would have continued to drive the tractor without the headlights being illuminated and the illumination from the tractor would have provided a source of light to assist the detection of the tote bin and trailer.
In view of the evidence of the eye witnesses prior to the accident, her Honour’s findings about the state of lighting on the tractor and the tote bin being driven by Mr Honey are not surprising. They were certainly open to her Honour.
A truck driver, Mr Peter O’Reily, saw the convey after he just left Barmera on his way back to Adelaide that night. He left Monash sometime between 12.00 am and 12.30 am having dropped off a load and stopped for a cigarette and coffee. He saw the convoy and passed it about 3.5 kilometres from the Kingston-on-Murray bridge on the western side of Barmera. He first observed the convoy from about 200-300 metres away. He thought it was poorly lit. He was so concerned about it that he sent out a warning on the ultra high frequency (UHF) radio to other truck drivers about the state of the poorly lit convoy. In the message he communicated that there was a grape harvester and it was not lit very well. Mr O’Reily’s best estimate of the time he passed the convoy was between 12.45 am and 1.00 am.
The appellant acknowledged in evidence that he heard that warning. He was familiar with that section of the road having travelled down that road many times. He was aware that convoys often appeared on the highway in the middle of harvesting season. He was aware that the road narrowed at the bridge and that he needed to be careful about oncoming traffic. He said he was watching where he was going as that part of the road “gets a little bit tricky in that part with the guard rails and that”. He observed two cars pass him on that section of the road including a bread van and a white Falcon. He left his lights on low beam after those vehicles passed him as he saw lights of an approaching vehicle about one kilometre away. He acknowledged that he could only see ahead 50-60 metres on low beam. He said he saw something on the road ahead but because it could have been a kangaroo hopping across the road he did not brake immediately.
The Legal Principles
The appellant was convicted of a charge contrary to s 45 of the Road Traffic Act 1961 (SA). Section 45(3) creates the aggravated offence of driving without due care causing death or serious harm.
White J in Police v Melisi summarised the test to be applied to determine whether this offence has been proved:[1]
The legal principles applicable to alleged contraventions of the obligation to drive with due care are well established. The issue is to be determined objectively. The obligation to drive with due care is the duty to exercise the standard of care which one would expect of a reasonably prudent driver in the like or similar circumstances. In the assessment of whether a particular driver has departed from that standard, it is immaterial that he or she had been unaware of, or did not advert to, the risks which the manner of driving presented to other road users. The reasonably prudent driver is expected to drive with a defensive outlook, ie, a lookout “that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger”.
[1] Police v Melisi (2010) 106 SASR 105 at [17].
On appeal this Court is required to reconsider all of the evidence before the Magistrate and to make up its own mind after giving due weight to the advantage the Magistrate had in seeing and hearing the witnesses and, after giving due weight to the Magistrate’s findings on credibility, which depended wholly or in part on the demeanour of the witness.
Analysis of the Evidence
The evidence given by the appellant before the Magistrate was important. It established that he knew the road well. In particular he was aware of the lie of the road ahead and the bend to the right. There was no dispute that a driver of a vehicle approaching the bridge from an easterly direction has an unobstructed line of sight for a distance of approximately 1000 metres. This was an area of the highway in which the appellant acknowledged that caution was needed. As he came off the bridge two other vehicles, the bread van and the white Falcon, passed him travelling in the opposite direction. He opted to leave his lights on low beam as he saw the throw of lights of a vehicle approaching but not yet around the bend ahead. He estimated the distance of the approaching vehicle to be about one kilometre away. He acknowledged that he could only see 50-60 metres ahead of the road with low beam. He acknowledged that that section of the road can get a bit tricky particularly where the guard rails are positioned. It was very necessary to be careful about oncoming traffic.
The appellant also acknowledged that he was travelling on a section of the road where he knew, due to the configuration of the road, its surrounds and the presence of other vehicles, that it would be impossible to change course if confronted with an emergency.
The appellant was quite vague about the timing of the warning which he heard over the UHF radio, however he conceded that he had heard a warning about a poorly lit convoy earlier that night. Notwithstanding his vagueness as to the timing of the warning it was open to the Magistrate on the basis of Mr O’Reily’s evidence to conclude that the warning he received was only a few minutes before the accident.
Furthermore, the appellant acknowledged that he was aware of the potential presence in the area of convoys during grape harvesting time as he had encountered poorly lit convoys in the past.
He acknowledged that he did see something on the road ahead before he switched on his high beam however he did not immediately brake at that time because it could have been a kangaroo hopping over the road. The appellant explained why he would not normally stop for a kangaroo or other animal hopping over the road. He said truck drivers do not stop or brake for kangaroos as it is too dangerous.
One of the appellant’s complaints related to the finding by the Magistrate that the appellant failed to brake at all prior to the collision. This finding was said to be found in [66]:
The explanation as to why the defendant did not brake before the collision is probably due to his usual reaction to wildlife being present on the road as outlined in these questions I asked.
In my view the Magistrate’s comments at [66] clearly relate back to the Magistrate’s earlier comments at [64]:
However, I consider the evidence did not support this opinion as the defendant gave evidence of some hesitation in reacting to the possibility of a collision. The defendant did not apply either his brakes or engine brake when he became aware of that something was ahead of him as a road. He did not do so as he it, could have been a kangaroo hopping across the street or anything. Had he applied his brakes at this stage he could not have avoided the collision but the impact would have been less severe. Once the defendant did react there was a short delay between the activation of air brakes on the semi-trailer and the locking of the wheels in the order of ½ second.
[footnotes omitted]
It is plain that when the Magistrate referred to the appellant’s failure to brake she was referring to the time when the appellant first sighted something on the road ahead and not later when the he saw the collision was imminent.
It is correct that the appellant did all which might be expected of a reasonably prudent driver after he first saw the tractor or tote bin in the path of the high beam. However, the actions of the appellant must be evaluated not just in that precise moment when he realised a collision was imminent, but as he drove that heavy vehicle along that section of the road on the Sturt Highway in the circumstances which he did that night.
Those circumstances as I have pointed out included the fact that he was thoroughly familiar with this difficult section of road, he was aware that there was a poorly lit convoy somewhere out on the highway and knew that he only had a line of vision of 50-60 metres in front of him without high beam. Notwithstanding that fact the appellant did not slow down and was travelling at no less than 95-97 kilometres per hour when he first saw something on the road ahead. Even then he did not instantly brake but waited until he had flicked on his high beam. All of this occurred at a time when the appellant was on notice via the warning sent out by Mr O’Reily of a poorly lit convoy in the very same area through which he was then travelling.
In my view a reasonably prudent driver in the position of the appellant driving a heavy vehicle along the Sturt Highway at that time and place, would have slowed down and travelled more cautiously. A reasonably prudent driver would also have flicked on his headlights, even momentarily, to ensure that the roadway ahead was clear.
As to the appellant’s specific complaint that the Magistrate was wrong to find that had the appellant driven with the headlights on high beam he would have seen the tractor in time to avoid the collision, it might be accepted, that on its own, the failure to drive without the headlights on high beam might not have been sufficient to avoid the collision altogether. However that is not the effect of the Magistrate’s findings. The Magistrate’s finding of guilt was based on a combination of circumstances which she found proved. Those circumstances included the failure to drive with the headlights on high beam, the speed at which the vehicle was travelling, the failure to brake when the appellant first saw something on the road and the failure to drive defensively as he drove on that particular section of the highway.
Even accepting, as the Magistrate found that the convoy was poorly lit, quite independently of any of the evidence of the police accident reconstruction witness, Mr Angus Spence, which was based on unproved assumptions, the Magistrate was correct to find that the appellant had departed from the standard of care to be expected of a reasonably prudent driver in the circumstances of the appellant. In these circumstances Mr Spence’s calculations and assumptions are quite irrelevant to the result. Even if they were in error Mr Spence’s calculations are immaterial to my conclusion that the appellant departed from the standard of care to be expected of a reasonably prudent driver in like circumstances.
Having reviewed all of the evidence for myself, quite independently of any assumptions made by Mr Spence, and accepting that the lighting on Mr Honey’s tractor and tote bin was inadequate, I am nevertheless satisfied that the appellant drove without due care.
The Magistrate was correct. The appeal is dismissed.