W, AJ v Police - [2011] SASCFC 121

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Youth Court Appeal)
W, AJ v POLICE
[2011] SASCFC 121
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Stanley)
26 October 2011
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS - DRIVING WITHOUT DUE CARE AND ATTENTION
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - CAUSATION
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES - GENERALLY
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - APPEALS
Appeal against conviction and sentence – appellant was charged with three counts of causing death by dangerous driving – appellant was found not guilty of the three counts of causing death by dangerous driving – appellant was found guilty of three alternative charges of aggravated careless driving – the aggravating factor was causing the death of the three victims.
Trial Judge found the appellant guilty of aggravated careless driving on the basis of the appellant's excessive speed – trial Judge found it proved that the appellant was driving at substantially in excess of the speed limit – trial Judge did not find beyond reasonable doubt the specific speed or speed range of the appellant – whether trial Judge erred in accepting the evidence of an eye witness over the evidence of the appellant in relation to the speed at which the appellant was driving.
Appellant gave evidence that he was struck in the eye by cigar ash and was blinded moments before the accident – trial Judge accepted this as a reasonable possibility – trial Judge still found it proved that the appellant’s speed was a substantial cause of the collision – whether trial Judge erred in making that finding having accepted the appellant's evidence as reasonably possible.
Appellant was given a suspended sentence of 7 months detention and a licence disqualification of 3 years – whether the period of disqualification is manifestly excessive.
Held: Appeal dismissed – trial Judge made careful findings of fact and properly dealt with the weaknesses in the eye witness evidence – there is no reason to interfere with the trial Judge’s findings in relation to the speed of the appellant – trial Judge applied the correct test of causation and found that the appellant’s speed was a substantial cause of the collision, although arguably not the only cause – there is no basis for disagreeing with the trial Judge’s conclusions – the period of licence disqualification is not manifestly excessive given the seriousness of the offence.
Criminal Law Consolidation Act 1935 (SA) s 19A(1), s 19B(2), s 19B(3); Road Traffic Act 1961 (SA) s 45; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Youth Court Act 1993 (SA) s 22, referred to.
Royall v The Queen (1991) 172 CLR 378, applied.
R v Leaf-Milham (1987) 47 SASR 499, discussed.

W, AJ v POLICE
[2011] SASCFC 121
Full Court: Gray, David and Stanley JJ
GRAY J:

W, the defendant and appellant, was charged on information with three counts of causing death by dangerous driving contrary to section 19A(1) of the Criminal Law Consolidation Act 1935 (SA). The alleged offences arose out of the same incident – a collision between a motor vehicle driven by the defendant and a tree – at Mt Compass on 26 January 2010. Three passengers in the defendant’s vehicle died as a result of the collision. The defendant was acquitted of the three counts of causing death by dangerous driving, but convicted on the three counts of the alternative offences of causing death by careless driving. The defendant was aged 17 years at the time of the offending, and was dealt with in the Youth Court.
The defendant was sentenced to the one sentence in respect of all offending, a period of suspended detention for seven months. He was disqualified from holding or obtaining a drivers licence for a period of three years.
The defendant has appealed both against his convictions and sentence but only in respect of the driving licence disqualification imposed.
The facts of the matter have been addressed in detail in the reasons of David J. I respectfully adopt his treatment of the facts. I also agree with his consideration of the arguments on the appeal and I agree that the appeal should be dismissed. I wish however, to add the following short observations.
The trial Judge heard the trial sitting as a judge alone. The Judge concluded that the defendant, at relevant times, was travelling at a substantially excessive speed. The Judge accepted the possibility that the defendant’s vision had been affected as a result of a cigar butt or cigar ash coming into contact with one of his eyes. The Judge then reached the following conclusions:
It is perfectly plausible that this would cause him to momentarily close his eyes, and would affect his control and management of the vehicle. It follows that the defendant being struck in the eye by something, played a role in causing the collision with the tree. However, I have no hesitation in finding beyond reasonable doubt that the speed was a substantial cause of the collision and hence of the deaths of the three passengers. There are two reasons for this.
Firstly, I consider the defendant’s evidence overplays, to some extent, this aspect of the incident. As noted I consider it more likely to have been ash to have blown into his eye. I consider his suggestion of excruciating pain is an exaggeration. There is no evidence of any discernable injury or symptomology to the eye. At most this appears to have been a surprising, and even possibly painful, momentary distraction.
The second, and more important reason, arises from the totality of the evidence. The defendant was driving at daylight on a bitumen road. Were it not for his excessive speed, the exigency of being struck in the eye would not have had the consequences which followed here. If he is correct that he was struck as he passed Mr Rivers’ gate, the vehicle traversed a further 490 metres before striking the tree with (obviously) significant force. At the time this exigency arose, the defendant was driving on a road with a 100 kilometre per hour limit and approaching a right hand bend with an 80 kilometre per hour advisory sign. As I have already found, he was travelling significantly in excess of 100 kilometres per hour. His speed and manner of driving was plainly a substantial cause of the collision with the tree.
However, as I have outlined, I do not consider the prosecution has proved beyond reasonable doubt the defendant was driving in a manner, or at a speed, dangerous to the public.
Pursuant to s19B of the Criminal Law Consolidation Act, it is necessary to consider whether statutory alternative offences are made out.
I consider the finding I have made as to the speed at which the defendant drove, in the circumstances outlined, plainly amount to driving without due care or attention. He was plainly not exercising the standard of care one would expect of a reasonably prudent driver in like, or similar circumstances, and I so find beyond reasonable doubt.
Given my findings that the defendant’s speed and manner of driving was a substantial cause of the collision, and hence, of the deaths of [the three passengers] I consider that three separate offences of causing death by careless driving are proved beyond reasonable doubt.
[Footnote omitted.]
The critical issue raised on the appeal was whether the Judge was correct in his conclusion that excessive speed was a substantial cause of the deaths of the three passengers.
The relevant test of causation was that identified by Mason CJ in Royall:[1]
Indeed, I did not understand the applicant to contend, apart from the submission that there must be an interaction between act and intent, that any of the three possibilities put forward by the Crown could not amount to an act which was causative of the deceased’s death, if the jury accepted that the act took place. The issue of causation was left to the jury to decide as one of fact. In this respect I agree with the statement made by Burt C.J. in Campbell v. The Queen, that it is “enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter”; see also Timbu Kolian v. The Queen, per Windeyer J. That is the test that has been applied in negligence cases by this Court: see March v. Stramare (E. & M.H.) Pty. Ltd. Although the trial judge’s direction was not so explicit, the jury would have plainly understood it in the sense expressed in the statement just quoted.
[Footnotes omitted.]
[1] Royall v The Queen (1991) 172 CLR 378, 387- 388.
Deane and Dawson JJ in Royall discussed the circumstance of there being no single cause of death, and in that respect observed:[2]
Of course, there may be no single cause of the death of the deceased, but if the accused’s conduct is a substantial or significant cause of death that will be sufficient, given the requisite intent, to sustain a conviction for murder. It is for the jury to determine whether the connexion between the conduct of the accused and the death of the deceased was sufficient to attribute causal responsibility to the accused: Reg. v. Pagett.
In Timbu Kolian v. The Queen, Windeyer J. referred to the warning of Sir Frederick Pollock that “the lawyer cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause”. Windeyer J. continued by observing that “in ascribing effects to causes, and in seeking the cause of an event, the purpose of law, civil and criminal, is to attribute legal responsibility to some person — “to fix liability on some responsible person”, Lord Sumner said in Weld-Blundell v. Stephens”. Burt C.J. in Campbell v. The Queen, said much the same thing:
It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.
[Footnotes omitted.]
[2] Royall v The Queen (1991) 172 CLR 378, 411- 412.
In my view, there was ample evidence to justify the conclusion that the excessive speed as found by the Judge was the substantial cause of the defendant losing control of his vehicle and the vehicle’s collision with a tree, the force of the collision causing the death of the three passengers. The Judge applied the correct tests of causation when considering the issue arising in the present proceeding.
Counsel for the defendant argued on the appeal that the collision with the tree was an inevitable accident. It was said that it was a reasonable possibility that the incident affecting the defendant’s eye was an intervening cause and that the collision was inevitable. Counsel treated novus actus interveniens as merging with the concept of an inevitable accident. Counsel sought to draw analogy with a child emerging onto a road from between parked cars and a conclusion that regardless of speed, a motor vehicle would have struck the child.
In my view, the submission put on behalf of the defendant should be rejected. Although the concept of novus actus interveniens has historically been difficult to define, I would with respect adopt the following analysis from the 2008 edition of Blackstone’s Criminal Practice:[3]
A defendant will not be regarded as having caused the consequence for which it is sought to make him liable if there was a novus actus interveniens (or new intervening act) sufficient to break the chain of causation between his original action and the consequence in question. Although his original act may remain a factual cause, but for which the consequence would never have occurred, the intervening act may supplant it as the imputable or legal cause for the purpose of criminal liability. This intervening act may be the act of a third party, an act of the victim or an unforeseeable natural event, sometimes called an ‘act of God’. These three variants will be considered in turn, but one general point may be made at the outset: no such intervening act can break the chain of causation if it merely complements or aggravates the ongoing effects of the defendant’s initial conduct. …
[3] Hooper and Ormerod (eds), Blackstone’s Criminal Practice (2008) [A1.27].
I consider, in the present proceeding, that the reasonable possibility of the defendant’s vision being affected by a cigar butt or cigar ash could not be said to supplant excessive speed as a substantial cause of the collision. In my view, the excessive speed of the defendant remained a substantive cause. The excessive speed impaired the defendant’s ability to cope with any momentary loss of vision. On the defendant’s own evidence, he travelled a distance of approximately 490 metres between the impairment of his vision and the collision with the tree. Had the defendant been travelling at a safe speed, he would have had ample time to cope with such an emergency.
I do not consider the analogy to a child stepping out from between parked cars to be of any assistance. A similar submission was addressed in this Court in the decision in Leaf-Milham.[4] In that decision, it had been submitted that there was no causative link between the driving at 100 kilometres per hour and the death of the pedestrian. It had been submitted that the evidence established, or the prosecution had not excluded beyond reasonable doubt the possibility, that the pedestrian stepped out in the last moment into the path of the oncoming car so that it did not matter whether the appellant’s car was travelling at 50 to 60 kilometres per hour or at 95 to 100 kilometres per hour. It was submitted that in either event, the car would, or might have, struck and caused the death of the pedestrian. In rejecting these submissions, White J observed:[5]
The weakness of the submission, in my opinion, is that the hypothetical car travelling at, say, 50 km/h would not, in the hypothetical circumstances, be positioned at a notional point about halfway between the actual position of the appellant’s car (at the moment when the deceased began to step out to the west) and the pedestrian himself. On the contrary, for the purpose of considering causation, the hypothetical car travelling at a safer speed of 50 km/h must be positioned, for the purposes of true comparison, in exactly the same position where the appellant’s car was at the moment when the pedestrian began to step out. The hypothetical car travelling at half the appellant's speed but positioned where the appellant’s car was at the same point of time, must undoubtedly have been able to avoid the collision and not cause death when driven by a reasonably alert and competent driver who had been keeping a proper look-out and observed the movements of the swaying pedestrian. The jury was entitled to conclude beyond reasonable doubt that the hypothetical driver saw, as others saw, the pedestrian as he jay-walked across the eastern half of The Esplanade; and that he saw him pause for a few seconds on the centre-line or take a few steps to the north along the centre-line with his back to the approaching car; that he appreciated the danger in the situation to a specific member of the public; and that he would have either slowed down below 50 km/h or placed his foot on or near the brake and kept his eye on the swaying deceased in readiness for any careless movement on his part. In the course of argument, I gathered the impression that Mr Martin envisaged the appellant being some 90 to 100 feet back from the pedestrian just as he began to step to the west, with the hypothetical car being only half that distance away. I may have misunderstood him. If that were the true comparison, there would be more substance in Mr Martin’s argument that even a careful driver could not have avoided this pedestrian. However it is not the true comparison. The true comparison is one which puts the careful driver in the physical position of the dangerous driver, well back and aware of the presence of a danger to the pedestrian.
[Emphasis added.]
[4] R v Leaf-Milham (1987) 47 SASR 499.
[5] R v Leaf-Milham (1987) 47 SASR 499, 503-504.
As noted above, I agree with the reasons of David J and for those reasons and having regard to my further observations I would dismiss the appeal against conviction.
I agree with the reasons of David J for dismissing the appeal against sentence.
DAVID J: The appellant was charged on Information with three counts of causing death by dangerous driving contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). The three offences arose out of the same act of driving at Mount Compass on 26 January 2010. It was alleged that on that occasion the appellant drove at a speed which was dangerous to the public and thereby caused the death of three young men who were in his car at the time. The three counts relate to the death of the three victims respectively.
At the time of the alleged offending the appellant was aged 17 years having been born on 30 March 1992. He pleaded not guilty to the charges and was tried in the Youth Court by a Youth Court Judge.
The trial Judge found the appellant not guilty of each count as charged, but guilty of the alternative charges of aggravated careless driving, the aggravating factor being that he caused the death of the particular victim on each count.[6] The sentencing Judge, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”), imposed a single sentence of seven months detention which he suspended, putting the appellant under an obligation for 18 months to be of good behaviour. He also imposed a licence disqualification of three years.
[6] Criminal Law Consolidation Act 1935 (SA) s 19B(2), s 19B(3); Road Traffic Act 1961 (SA) s 45.
Pursuant to s 22 of the Youth Court Act 1993 (SA) (“the YCA”), the appellant appeals against the three convictions and sentence.
The appeal against the convictions focuses on the finding of the trial Judge that it was proved beyond reasonable doubt that the appellant, at the relevant time leading up to the accident which caused the death of the three victims, was driving at such a speed as to make out the alternative offence of causing death by careless driving. Strictly speaking, the finding of the trial Judge was that the alternative offence of careless driving was made out but that it was aggravated by the fact that the offence as proved caused the death of a person. The appeal focuses on the nature of the evidence which was led by the prosecution at the time seeking to prove the speed that allegedly amounted to careless driving. It also focused on the question that if careless driving was proved, nevertheless there was not sufficient evidence to prove the aggravating feature, namely that that driving caused the death of a person.
Trial
Much of the evidence led at trial was not in dispute. The trial Judge heard oral evidence and received by consent a number of affidavits, plans and photographs. The charges arose out of an accident wherein the appellant was driving a vehicle along Wood Cone Road, Mount Compass. That vehicle left the road and collided with a tree. The collision killed three passengers, all of whom were seated in the back seat of the car because the front passenger seat had been removed. All of the victims were wearing a seat belt.

It was not disputed that at the time of the accident the appellant was aged 17 years and 10 months and was driving a V6 Holden station wagon that he had purchased approximately two to three weeks earlier.
It was an agreed fact that his passengers at the time, Brock Grivell, Jake McMillan and Matthew Solly were sitting in the back seat of the car when the accident occurred and were all killed. It was a further agreed fact at trial that blood taken from the appellant several hours after the accident did not contain alcohol or drugs. Samples taken from Matthew Solly after his death contained 0.093 grams of alcohol in 100 millilitres of blood and 0.126 grams in the vitreous humour. Blood samples taken from Brock Grivell showed no alcohol was located in his blood. Samples were also taken from Jake McMillan and contained 0.08 grams of alcohol in his blood, 0.103 grams in the vitreous humour and 0.118 grams of alcohol in the urine. There was no evidence of any other drugs in the blood of any of the victims.
A number of witnesses were called by the prosecution who gave evidence about the accident and in particular their observations of the speed at which the appellant’s car was travelling. Two crash investigation officers were called and made observations of the scene. The appellant gave evidence on oath and during the course of the prosecution case interposed an expert witness who gave various opinions as to the ability of a number of the prosecution witnesses to give the evidence they did concerning the speed of the appellant’s vehicle. That evidence at trial was taken subject to objection and, in his reasons, the trial Judge found that the opinions he gave were inadmissible. There was no ground of appeal in relation to that finding nor was it argued on appeal in any direct or indirect way. I therefore will not refer to that evidence.
The prosecution case
Wood Cone Road, Mount Compass runs in a roughly north-east, south‑west direction. For the purposes of this judgment I will refer to it as running east and west. At the eastern end it joins Victor Harbor Road. It is constructed of bitumen, which at the time was in average condition, and was designed to facilitate a single lane of traffic for each direction. The lanes were divided by a broken white line painted in approximately the centre of the carriageway. Both sides of Wood Cone Road at the scene were bordered by thick vegetation including a large number of trees and shrubs leading to rural farming properties. There were no street lights or traffic controls within the scene of the accident. There were no speed limit signs on Wood Cone Road and it was therefore agreed that the speed limit was 100 kmph. However, near the scene of the accident there was an 80 kmph advisory speed limit sign.
The prosecution at trial called four civilian witnesses and tendered a number of witness statements including those of the witnesses who were called to give oral evidence.
Mr Donald Rivers lived at Lot 5, Wood Cone Road. He had lived there for about 11 years. It was a farming property located on the northern side of Wood Cone Road. Mr Rivers gave evidence that at about 8.15 pm on the evening of 26 January 2010 he was in his paddock checking some goats when he saw a car travelling west along Wood Cone Road. He recognised it as the appellant’s car, having seen it about half an hour before in Mount Compass and the appellant having been known to Mr Rivers. When it was travelling west he described it as “flying”. It was light at the time. He gave evidence that when he saw the car travelling west he could not say that it was the appellant who was driving but only assumed that to be so and he heard that the engine was revving. He estimated the speed at 120 kmph to 150 kmph. The car passed his property and he lost sight of it. He heard tyres squealing and the car revving and then he walked back to his house. He then heard the car start up again and heard it revving “very high and hard” and it was coming back travelling in an easterly direction. He gave evidence that it was going even faster on the return journey. He said that the engine sounded like it was over-revving and it was not an exhaust noise. He saw it come around a corner and, because there are trees at his gate, lost sight of the car. He took his attention off the vehicle and then heard a big bang. He jumped into his car and raced down the driveway and saw that the car had crashed into a tree. He then gave the following evidence:[7]
[7] T32.1-15.
QDo you remember whether he said anything at that time.
ANo, he didn’t say a lot, no. I just sort of tidied – put himself together and I just asked him, I said ‘Do you realise what’s happened and what you’ve done?’ and he said ‘Yeah, I’ve killed my mates’. Then we walked back to the car and then there was other people pulled up from the caravan park and the neighbours from next door had pulled up just outside their gate.
QAt any point did you ask [the appellant] what had happened.
AYes. He said he got something in his eye or something like that, to that effect.
QDo you remember what he said that he got in his eye.
AI think he said cigarette ash or something like that.
QDid you ask him other questions at that point.
AI don’t remember.
It is clear from his evidence that where Mr Rivers saw the car when it was travelling east back on its journey, leading up to the accident, he was standing in a position about 382 metres from the road. When he last saw the car outside his property before he lost view of it as it travelled towards the accident scene, it was a distance of just short of 500 metres from that position in front of his property to the scene of the accident where the car hit the tree.
The effect of Mr Rivers’ evidence was that, from what he saw and what he heard, the car was travelling at an exorbitant speed when travelling west and was travelling even faster on the return journey leading up to the accident. He was challenged in cross-examination as to his estimate of speeds. He gave evidence that other than wearing reading glasses he does not have any problems with seeing long distances and, although he had been drinking that afternoon at home, he was not affected by alcohol. He had been driving for many years.
Annette Cramer had lived on Wood Cone Road for about seven months at the time of the accident. She described the tree with which the appellant’s vehicle collided as being about 60 metres away from the front of her house. She said that just prior to the collision she was outside of the house. She heard the noise of a car travelling in an easterly direction towards Victor Harbor Road. She described the noise as getting louder and louder as it was coming towards her. She gave evidence that by the sound the car was moving and travelling “very, very fast”. Although she did not see the car actually hit the tree, she saw the results of the collision as being “a huge dust ball”. After the collision she went to the scene where her husband, Michael Cramer, was and then went back inside and called an ambulance.
Michael Cramer gave evidence that he walked outside of his house to turn the sprinkler off and he heard the noise of a car well up Wood Cone Road. He described the noise as going up and down. As the car got closer the sound increased and he described the vehicle as “flying”. When the car hit the tree he was walking back towards the house having turned the sprinkler off and he heard a “massive great big bang”. In his statement, which was tendered in evidence, Mr Cramer also said that he attended at the crash scene and among other things he heard the appellant say that one of passengers had “thrown a lit cigarette from the car” and that the cigarette had “come back in and hit me in the eye”.
Leonie Braun also gave a statement to the same effect. She was staying at the Mount Compass Caravan Park when the accident was reported and she attended at the scene. She said that the appellant said “I’ve killed my mates. I’ve killed my mates. My mate in the back flicked a cigar out of the window and it came back and hit me in the eye and I couldn’t see.”
Matthew James Sellars gave evidence that on the evening of 26 January 2010 at approximately 8.30 pm he was travelling home from Mount Compass along Wood Cone Road. He saw the appellant’s car coming around the corner with the three passengers. Mr Sellars was travelling in a westerly direction towards his home and the appellant’s car was travelling in an easterly direction. Mr Sellars saw nothing untoward about the appellant’s speed at that stage.
Brevet Sergeant Craig Vidler of the Major Crash Investigation Unit attended the collision scene at about 10.28 pm on the evening that it occurred. He took photographs and was involved in the preparation of plans which were tendered in evidence. He gave various statements and oral evidence in court. The trial Judge found, and there appears to be no dispute, that the distance from Mr Rivers’ driveway to the tree where the vehicle collided was approximately 490 metres. Also, there was no dispute that the tree is at the end of a right hand bend at the approach of which is an 80 kmph advisory speed sign.
Sergeant David Kutchenmeister was also attached to the Major Crash Investigation Unit and had extensive training and experience in accident investigation including collision reconstruction, speed estimation, tyre mark identification and interpretation, collision dynamics, damage analysis and vehicle behaviour. He also attended at the scene on the night of the accident and re‑attended the following day and his evidence was not in dispute. The upshot of Sergeant Kutchenmeister’s evidence was that the appellant’s vehicle commenced leaving the bitumen and encroaching upon the northern dirt verge leading up to the tree approximately 36.7 metres before it reached the tree. He gave the opinion that at about that distance there was an initial tyre mark which appeared to be a scuff mark of a tyre under some sort of braking. As there were no discernable marks on the bitumen itself, Sergeant Kutchenmeister was unable to comment on where the braking commenced and therefore was unable to form any estimation as to the speed of the car on that basis.
The prosecution case in establishing that the charge was made out was therefore reliant upon the eye witnesses who observed the appellant’s vehicle travelling on Wood Cone Road leading up to the collision and, in particular, upon the evidence of Mr Rivers.
The defence case
As I indicated earlier in these reasons, the appellant called an expert witness namely a research psychologist, Thomas James Triggs. Professor Triggs gave his opinion as to the identification and assessment of factors that could contribute to errors of observations of witnesses or estimation of speed of a passing vehicle. The evidence was led at trial under objection and in his reasons the learned trial Judge said:
[51]I return to the issue of Professor Triggs’ evidence. I do not consider that his evidence is admissible expert evidence at all, in this case. This is because I do not consider it is a subject which is not, or not wholly, within the knowledge and experience of ordinary persons.[8] I do not consider that the Court requires expert evidence to identify and assess the factors that could contribute to errors of observation or estimation of the speed of a passing vehicle. Whilst Professor Triggs’ evidence expresses some of these issues in more scientific and technical language, they boil down to the issues that have been outlined above. These are all matters of ordinary common experience.
As there is no ground of appeal challenging that finding nor was there any argument on appeal on that topic, it is unnecessary to deal with this topic.
[8] R v Bonython (1984) 38 SASR 45; Clark v Ryan (1961) 106 CLR 292.
The appellant gave evidence on oath.
He told the Court that at the date of the collision he was 17 years and 10 months of age and he owned the vehicle he drove on that occasion. He had purchased it two or three weeks before. He said he had to remove some of the exhaust system because it was rusted and as a result the car would make a very loud noise. He told the Court that on 26 January 2010 he was at a barbeque with a number of his friends and, having arrived there at 11.00 am or 12.00 pm, he left at about 6.00 pm. Although he had consumed some alcohol that is irrelevant bearing in mind the results of his blood sample taken after the accident. At one stage he left the party to go to Mount Compass at about 4.00 pm in the afternoon. When he left the house at 6.00 pm he went to another part of Mount Compass, namely Matthew Solly’s house. He took with him the three deceased passengers. He told the Court that his car was missing the front left hand passenger seat and so the three passengers sat in the back.
Whilst at the house, the other boys wanted to go to Matthew Sellars’ house to tell him about a party and the appellant was concerned that they were drinking so he offered to drive them. Matthew Sellars’ house is on Wood Cone Road. He said that Matthew Solly, Jake McMillan and Brock Grivell were in the back seat. The appellant said he had opened a can of alcohol which he put in the centre of his car but he did not drink. It was Bundy and cola. The appellant eventually drove the car to Wood Cone Road travelling in a westerly direction to Matthew Sellars’ driveway. He said that his speed whilst travelling west was 90 kmph to 100 kmph. He gave evidence that he was just “cruising along”. He denied that he was travelling as fast as 110 kmph or more. It was the plan when they got to Matthew Sellars’ home to inform him that there was going to be a party at one of the other boys’ houses. When they got to Matthew Sellars’ property they did not see anyone and the gate was locked. The appellant gave evidence that they waited for a while and a couple of the boys jumped out. He also added that on the trip down Jake McMillan had cigars with him which he was offering around. When the boys got out of the car the appellant and Jake McMillan smoked cigars and they were generally messing around in the area. They were there for about five or 10 minutes, the appellant put his cigar out, they jumped back into the car and the others lit up cigars whilst they were returning along Wood Cone Road in an easterly direction. He gave evidence that he thought that Brock Grivell and Matthew Solly were smoking.
Whilst on the return journey, the appellant saw Matthew Sellars’ car travelling in a westerly direction, presumably towards his home. They did not stop or speak to each other. The appellant thought that when he was travelling along the road at that stage he was going at about 100 kmph to 110 kmph. He remembers passing Mr Rivers’ property and said the sound of a car was extremely loud because of the missing exhaust. The appellant then gave the following evidence:[9]
[9] T282.1-35.
QIn any event you passed Mr Rivers’ property.
AYes.
QWhat happened.
APast Mr Rivers’ property, as I was going down the road I seen a hand come past my head and then –
QJust take this slowly – as you were coming past the property, you seen a hand come past your head.
AYes.
QFrom where.
AFrom the rear left hand side of the vehicle, next to the pillar.
QDo you know who was sitting there.
AMatthew Solly.
QMatthew Solly. What did you see or what was your impression when you saw this hand.
AThere was something being flicked out the front window, my driver’s window.
QWhat happened next.
AThat’s gone flying out the window and something’s come back in that’s hit me in the eye and it’s been a burning sensation.
QWhen that happened what did it do to you.
AExcruciating pain in the eye, so I’ve closed my eyes and felt the car verging off onto the dirt and I’ve opened my eyes again to – and then I’ve noticed I’ve tried to steer the car back onto the road and it started sliding.
QI realise this is extremely difficult but from the moment that you were blinded by the, whatever it was that came back in through the window – no, I withdraw that. You keep going, what happened, ultimately, what happened.
AIt’s hit the tree and spun around and when it’s come to a stop, I’ve looked around and went like ‘shit, there’s my mates, I can’t do – ’
He also said that he could not recall seeing the 80 kmph advisory sign before he got to the right hand bend leading to the accident. He also gave evidence that at the time he closed his eyes in response to the burning sensation, he might have been travelling at 100 kmph to 110 kmph. He denied travelling at speeds estimated by Mr Rivers of 140 kmph or 150 kmph.
The defence case was therefore that he was not travelling at a speed which amounted to driving in a manner dangerous to the public or indeed careless driving, that the accident was caused solely by the ash which was flicked into his eye. Even if he was driving at a speed which was careless or indeed dangerous, that driving was not a substantial cause of the accident because of the intervening factor of the ash in his eye.
The Judge’s reasons
There is no dispute that the Judge properly directed himself as to the onus of proof and the appropriate elements of the offence as charged and the alternative offences. On the question of the divergence between the prosecution evidence as to what speed the appellant was travelling at and the appellant’s evidence, the trial Judge made the following findings:
[38]The prosecution case turns primarily upon the evidence of Mr Donald Rivers. Of course, this evidence is to be assessed in the context of the totality of the evidence. However, apart from the [appellant’s] own evidence, the only direct evidence of speed is the evidence of Donald Rivers. And it is speed upon which the prosecution rely, to make out its case that the [appellant] was driving at a speed or in a manner dangerous to the public.
[39]I note at the outset that I found Mr Rivers to be an honest and genuine witness. He certainly did not appear to have any axe to grind. On the contrary, he came across as someone who has some reluctance about being caught up in this matter, but is prepared to do his best to give an honest and genuine account.
[40]I turn to the all important issue of the reliability, or otherwise, of Mr Rivers’ evidence. In particular, his estimate of the speed of the vehicle immediately prior to the collision with tree.
[41]There are a number of factors that militate against Mr Rivers being able to accurately estimate the speed of the [appellant’s] vehicle. These include the following:
•      Whether any witness, even in ideal circumstances, can accurately estimate the speed of a vehicle by merely observing it going past on the road. This is a very different exercise than, for example, driving a vehicle at a known speed and estimating the speed, of a vehicle that overtakes you. The process of estimating the speed of a vehicle driving past a stationery observer, is inevitably a fairly inexact process, even if the viewing circumstances are ideal.
•      For a significant distance that Mr Rivers observed the vehicle, it was partially obscured by trees. His clear unobscured vision on the second viewing was limited to approximately 100 metres.
•      Insofar as Mr Rivers bases his estimation upon both what he saw and what he heard, there is evidence that this vehicle did have a faulty exhaust system.
•      Mr Rivers was making his observations at a distance of approximately 382 metres from the road.
•      Mr Rivers agrees he had consumed some alcohol during the afternoon. He cannot recall exactly how much but gave an estimate of 4 to 6 light beers and 2 UDL scotches. There is no evidence upon precisely how this would affect his ability to observe the vehicle, and in particular, estimate its speed. However, this is likely to have had at least some detrimental effect upon his acuity as an observer and estimator.
•      The collision occurred at approximately 8.45 p.m. on 26 January. The evidence is that it was still light, but was just before dusk. I infer that the lighting, especially looking between trees, would not have been as ideal, as it would have been in the middle of the day.
•      I consider it is relevant that Mr Rivers immediately went to the scene of the collision and was the first in attendance. He saw the vehicle which had suffered extensive damage. He saw three people apparently deceased, in the vehicle. These were young men known to him. Not surprisingly, this has had a significant emotional affect upon Mr Rivers. This was apparent during his evidence. I have already noted that I consider Mr Rivers to be an honest and genuine witness. However, I consider there is a risk that the circumstances I have just outlined, could unconsciously colour Mr Rivers’ evidence, in the sense of causing him to tend towards a higher estimate of speed rather than a lower.
•      [Not applicable].
[42]The factors that I have just outlined need to be considered, along with the following:
•      Mr Rivers has significant experience driving motor vehicles. Whilst this is quite different to observing a vehicle and estimating its speed, it is not entirely irrelevant to that process.
•      Although Mr Rivers was a significant distance from the road, he was still able to see and hear the vehicle. Moreover, he is experienced in observing vehicles passing his property.
•      Although I accept the evidence that the exhaust was faulty, I consider the [appellant] is exaggerating when he claims that the vehicle was “always very loud”. More importantly, I accept the evidence of Mr Rivers, supported by the evidence of Michael Cramer that the noise of the [appellant’s] vehicle was readily discernable as the noise of an engine at high revs rather than a loud exhaust noise.
•      With respect to the possible affects of alcohol, or other deficiencies in viewing conditions, Mr Press correctly points out that other aspects of Mr Rivers’ evidence are supported, in some respects, by other evidence, including the [appellant’s] own evidence.   Mr Rivers is correct that the vehicle spent some 15 minutes or thereabouts in the proximity of Matthew Sellars’ place. He is correct that what he saw and heard was consistent with an encounter between the two vehicles (i.e. Matthew Sellars’ vehicle and the [appellant’s]) in the vicinity of the tight bend. On the [appellant’s] own evidence, Mr Rivers got it right that the return trip was at a higher speed than the outward journey.
He then dealt with aspects of the appellant’s evidence and said:
[44]I consider his evidence as to the reason for the trip to Matthew Sellars’ house, and the circumstances in which it came about, to be transparently false. There are two reasons for this, which can be shortly stated.
[45]Firstly, the [appellant’s] evidence on this topic was both inherently contradictory, and nonsensical. The inherent contradictions and variations included whether it was to invite Sellars to a party at the boys’ house, or at Barrett’s house; why it was really necessary to drive all the way to Sellars’ place to specifically invite him to this apparently spontaneous, and not yet organised, party; why, upon doing this they would make absolutely no attempt to walk up to his property when finding the gate locked; why they would spend time at the gate waiting for him when they had driven to his place to see him; probably most significantly, why, when upon encountering him at the bend they wouldn’t flag him down and invite him to the party as they had driven out there to do.
He then came to the following conclusion:
[50]I return to the evidence of Mr Rivers. I do not consider that his evidence enables me to make a specific finding as to the speed of the vehicle shortly prior to the collision, or indeed the precise range in which the speed must have been. Mr Rivers himself is at pains to point out that he is not a radar device. I do consider Mr Rivers’ evidence establishes beyond reasonable doubt, that the [appellant’s] vehicle was travelling significantly in excess of the 100 kilometre per hour speed limit. By significantly, I also mean substantially in excess of the 110 kilometres (or a little more) that the [appellant] is prepared to concede. Just how far in excess of 110 kilometres per hour he was travelling I am unable to find beyond reasonable doubt. What I do find established is that he was significantly over the speed limit for that stretch of road which was 100 kilometres per hour; and substantially in excess of 110 kilometres per hour.

Having made that finding applying the appropriate onus as to the speed at which the appellant was travelling, the trial Judge came to the following conclusion in relation to the offences as charged:
[60]There would be occasions where a specific finding of speed would be high enough to readily lead to the conclusion that the driving amounted to driving at a speed dangerous to the public. Moreover, speed needs to be looked at in the context of all the surrounding circumstances. A particular speed could be a danger to the public in certain circumstances, but not in others. I have regard to all of the circumstances here, including the [appellant’s] limited driving experience; how long he had owned the vehicle; the road surface; the features of this stretch of road; the bend he was approaching, and the 80 kilometre per hour advisory sign. As already outlined, I have not been able to find beyond reasonable doubt, the specific speed, or speed range, for the [appellant’s] vehicle. I have found beyond reasonable doubt that he was significantly in excess of the speed limit of 100 kilometres per hour; and substantially in excess of 110 kilometres per hour. I do not consider this finding, (or these findings) sufficient to constitute a finding that he was driving at a speed dangerous to the public. Whatever his actual speed was, it may or may not have been such as to amount to driving in a speed dangerous to the public. Upon the evidence proffered by the prosecution, the reasonable possibility that the speed was below that which constitutes driving in a manner dangerous to the public, in these particular circumstances, has not been excluded.
He then turned his attention to s 19B of the CLCA to consider whether there were any statutory alternatives made out and said:
[68]I consider the finding I have made as to the speed at which the [appellant] drove, in the circumstances outlined, plainly amount to driving without due care or attention. He was plainly not exercising the standard of care one would expect of a reasonably prudent driver in like, or similar circumstances,[10] and I so find beyond reasonable doubt.
[69]Given my findings that the [appellant’s] speed and manner of driving was a substantial cause of the collision, and hence, of the deaths of Brock Grivell, Jake McMillan and Matthew Solly I consider that three separate offences of causing death by careless driving are proved beyond reasonable doubt.[11]
[10] Dunsmore v Dawson (1981) 94 LSJS 1 at 4.
[11] Arthur v Police (2008) 101 SASR 529 at 537.
Earlier in his judgment, he dealt with the argument as to whether the collision was caused not by speed but by cigar ash striking the appellant in the eye about which he gave evidence. He found the following:
[62]I accept, at least as a reasonable possibility, that the [appellant] was struck in the eye by either a cigar butt or ash. I consider it is very significant that he was making this assertion straight after the collision. At that time he was obviously distressed at what had just happened, and had certainly not had any time for reflection. The cigar butt subsequently found in the foot-well of the vehicle is potentially supportive of the [appellant’s] version, if indeed it was the cigar butt, rather than merely ash, that struck him in the eye. In this sense I find it slightly implausible that the [appellant] would not know whether he was struck in the eye merely by ash or by an actual cigar butt. I would expect the sensation of being struck in the eye by an entire cigar butt, as found and photographed, to be quite different than merely having ash blow into one’s eye. Similarly, it appears slightly implausible that if a back seat passenger flicked a cigar butt which went flying out the window; that the entire butt would come back in the window as distinct from some ash blowing into the driver’s eye. However, I consider it remains a reasonable possibility that the [appellant] was struck in the right eye by either the cigar butt or ash.
[63]It is perfectly plausible that this would cause him to momentarily close his eyes, and would affect his control and management of the vehicle. It follows that the [appellant] being struck in the eye by something, played a role in causing the collision with the tree. However, I have no hesitation in finding beyond reasonable doubt that the speed was a substantial cause of the collision and hence of the deaths of the three passengers. There are two reasons for this.
[64]Firstly, I consider the [appellant’s] evidence overplays, to some extent, this aspect of the incident. As noted I consider it more likely to have been ash to have blown into his eye. I consider his suggestion of excruciating pain is an exaggeration. There is no evidence of any discernable injury or symptomology to the eye. At most this appears to have been a surprising, and even possibly painful, momentary distraction.
[65]The second, and more important reason, arises from the totality of the evidence. The [appellant] was driving at daylight on a bitumen road. Were it not for his excessive speed, the exigency of being struck in the eye would not have had the consequences which followed here. If he is correct that he was struck as he passed Mr Rivers’ gate, the vehicle traversed a further 490 metres before striking the tree with (obviously) significant force. At the time this exigency arose, the [appellant] was driving on a road with a 100 kilometre per hour limit and approaching a right hand bend with an 80 kilometre per hour advisory sign. As I have already found, he was travelling significantly in excess of 100 kilometres per hour. His speed and manner of driving was plainly a substantial cause of the collision with the tree.
In other words, the trial Judge found the appellant not guilty of all three counts as charged on the basis that the speed he found to have been proved did not amount to dangerous driving. He found the appellant guilty of the alternative charges of aggravated careless driving (although he describes it erroneously as causing death by careless driving) because the speed that had been proved amounted to driving without due care and that driving was a substantial cause of the death of the three deceased.
Appeal against conviction
There are basically two arguments on appeal. The first is that the learned trial Judge erred in finding that the evidence of Mr Rivers established beyond reasonable doubt that the appellant’s vehicle was travelling significantly in excess of 110 kmph and therefore making out the charge of at least driving without due care. The second and co-related argument is that as the trial Judge accepted the appellant’s version of the cigar ash getting in his eye as a reasonable possibility, he erred in finding it proved beyond reasonable doubt that even if the speed of the appellant’s vehicle was in excess of 110 kmph it was a substantial cause of the collision.
I deal with the first argument. There are many criticisms made by Mr Edwardson QC both at trial and on appeal of the estimations of speed made by Mr Rivers. I have set out the trial Judge’s detailed and thorough reasoning in full. All of the arguments presented on appeal by the Mr Edwardson were canvassed thoroughly by the trial Judge. He dealt in detail with all the obvious weaknesses contained in Mr Rivers’ evidence. Although it may be not so important in this case, he found Mr Rivers to be an honest and genuine witness. I say not so important because this is very much a question of reliability rather than credibility. But nevertheless, as a starting point he had confidence in the genuineness of Mr Rivers. He also carefully considered the credibility of the appellant and found that at least on peripheral matters he had given untruthful evidence. In doing that, and in making that assessment, the Judge was conscious of the fact that there was no onus upon the appellant when giving evidence. In my view, there is nothing in the evidence or in the trial Judge’s reasons that allow me to interfere with the careful findings of fact that he has made in this regard.
I would reject the first argument.
The second argument is that even if careless driving is made out due to the speed, one cannot say beyond reasonable doubt that the careless driving was a substantial cause of the collision as distinct from the appellant’s evidence in court and his statement straight after the accident that he got ash in his eye.
The trial Judge properly directed himself that for the speed to have caused the death of the deceased it must be proved beyond reasonable doubt that it was a “substantial cause of the collision”.[12] His Honour clearly finds that on the facts of this case that, despite the question of ash in his eye, his speed was a substantial cause of the collision although arguably not the only cause and there is no basis for disagreeing with his conclusions and his analysis of the evidence.
[12] R v Dawood (2002) 223 LSJS 19, Royall v R (1991) 172 CLR 378.
I would reject that argument.
I would dismiss the appeal against conviction.
Appeal against sentence
The appellant was sentenced to a single sentence pursuant to s 18A of the CLSA of seven months detention suspended upon him being under an obligation for 18 months to be of good behaviour and a licence disqualification of three years was imposed. The appellant now appeals against that sentence arguing that it is manifestly excessive but only in relation to the period of disqualification of his licence. It is to be noted that, pursuant to s 45 of the Road Traffic Act 1961 (SA), there is a mandatory minimum licence disqualification for six months and there is no maximum.
In my view, this is a very serious case of aggravated careless driving and it could not be reasonably argued that a licence suspension of three years is manifestly excessive.
I would dismiss that ground of appeal.
Conclusion
I would dismiss the appeal against both conviction and sentence.
STANLEY J: In this matter I have had the advantage of reading the reasons of Gray J and David J in draft. I agree with their reasons. I would dismiss the appeals against conviction and sentence.