WILLGOOSE v THE KING [2026] SASCA 55

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE ALEXANDRIDES) DCCRM-22-418 Appellant: LAUREN JEAN WILLGOOSE Counsel: MR P RICE KC WITH MS D BILLICH - Solicitor: BILLICH LAW Respondent: THE KING Counsel: MR K LESSES WITH MS L HURLEY - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 17/11/2025 File No/s: SCCRM-25-001806; SCCRM-25-012147 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. WILLGOOSE v THE KING [2026] SASCA 55 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Stanley) 21 May 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM The appellant was convicted by a judge siting without a jury of the offence of aggravated causing death by dangerous driving (Count 1), contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’). The aggravating circumstance was that the appellant committed the offence while there was present in her blood a concentration of alcohol of 0.08 grams or more of alcohol in 100 millilitres of blood. The appellant was also convicted of the offence of leaving the accident scene after causing death by careless driving (Count 2), contrary to s 19AB(1) of the CLCA. The appellant was sentenced to eight years’ imprisonment with a non-parole period of five years and eight months commencing on 5 March 2025. She was also disqualified from holding or obtaining a driver’s licence for 12 years. The appellant now appeals her conviction and sentence. As to the conviction appeal, in relation to Count 1, the sole appeal ground complains of an unreasonable verdict which ‘cannot be supported by the weight of the evidence’ (Ground 1). In -- 1 of 37 -- relation to Count 2, the sole appeal ground is also one of unreasonable verdict and is premised on the evidence being incapable of proving either dangerous driving or careless driving on the part of the appellant (Ground 2). As to the sentence appeal, the appellant complains that the sentence is manifestly excessive and was attended by various process errors (Grounds 2 and 3). Held, per the Court, granting permission to appeal against the convictions but dismissing the appeal: 1. It was open to the trial judge to find that a reasonably prudent driver in the circumstances of the appellant would have seen the deceased in the moments after he stepped off the kerb. It was also open to the trial judge to conclude that, having detected the deceased, a reasonably prudent driver in the circumstances of the appellant would have exercised caution and taken evasive action so as to avoid the collision. 2. It follows that the unreasonable verdict complaint in relation to Count 2, which was argued on the basis that the evidence did not support a finding that the appellant was driving carelessly, necessarily fails. 3. The verdicts are not unreasonable or not supported by the evidence. Held, per the Court, granting permission to appeal against sentence and allowing the appeal: 1. The sentence imposed was manifestly excessive. 2. The sentence imposed in the District Court is set aside, and the appellant is re-sentenced to a term of imprisonment for six years with a non-parole period of four years backdated to commence on 5 March 2025. 3. The appellant is disqualified from holding or obtaining a driver's licence for 12 years in respect of Count 1 and for 10 years in respect of Count 2. The periods of licence disqualification are to run concurrently and commence on the date of the appellant’s release from custody. Criminal Law Consolidation Act 1935 (SA) ss 19A, 19AB; Road Traffic Act 1961 (SA) s 43; Sentencing Act 2017 (SA) ss 3, 4, 11, 47, 48, referred to. R v Willgoose [2024] SADC 158, applied. Dansie v The Queen (2022) 274 CLR 651; House v The King (1936) 55 CLR 499; Hueppauff v The King [2024] SASCA 11; Jiminez v The Queen (1992) 173 CLR 572; Kroon v The Queen (1990) 55 SASR 476; Libke v The Queen (2007) 230 CLR 559; McBride v The Queen (1966) 115 CLR 44; Martain v The King [2023] SASCA 104; M v The Queen (1994) 181 CLR 487; R v Henderson (2023) 142 SASR 507; R v Leaf-Milham (1987) 47 SASR 499; R v Mayne (1975) 11 SASR 583; R v ZT (2025) 281 CLR 137; Spanjol v The Queen (2016) 55 VR 350; Trewren v The King [2023] SASCA 100, considered. -- 2 of 37 -- WILLGOOSE v THE KING [2026] SASCA 55 Court of Appeal – Criminal: Livesey P, David & Stanley JJA 1 THE COURT: The appellant was convicted by a judge sitting without a jury of the offence of aggravated causing death by dangerous driving (Count 1), contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’). The aggravating circumstance was that the appellant committed the offence while there was present in her blood a concentration of alcohol of 0.08 grams or more of alcohol in 100 millilitres of blood. The appellant was also convicted of the offence of leaving the accident scene after causing death by careless driving (Count 2), contrary to s 19AB(1) of the CLCA. 2 The appellant was sentenced to eight years’ imprisonment with a non-parole period of five years and eight months, commencing on 5 March 2025. She was also disqualified from holding or obtaining a driver’s licence for 12 years in relation to Count 1 and for 10 years in relation to Count 2. 3 The appellant now appeals her convictions and sentence. 4 As to the conviction appeal, in relation to Count 1, the sole appeal ground complains of an unreasonable verdict which ‘cannot be supported by the weight of the evidence’. In relation to Count 2, the sole appeal ground is also one of unreasonable verdict and is premised on the evidence being insufficient to prove either dangerous driving or careless driving on the part of the appellant. 5 As to the sentence appeal, the appellant complains that the sentence is manifestly excessive and was attended by various process errors. 6 For the reasons which follow, we grant permission to appeal the convictions but dismiss the appeal. We allow the appeal against sentence. We re-sentence the appellant to imprisonment for six years and fix a non-parole period of four years to commence from 5 March 2025. We disqualify the appellant from holding or obtaining a driver’s licence for 12 years in relation to Count 1 and 10 years in relation to Count 2. The periods of licence disqualification are to run concurrently and commence from the date of the appellant’s release from custody. Factual circumstances of the offending 7 At approximately 9:56pm on 30 June 2021, the appellant left the Goodwood Park Hotel (‘the hotel’) to drive home after having consumed 1.15 litres of red wine from 6:00pm. At about the same time, Mr Walsh was leaving the Good Gilbert Bar and Restaurant (‘the restaurant’) after having dined with his wife and friends. Mr Walsh was wearing a red jacket and bright yellow head wear. Mr Walsh stepped off the kerb and started walking across the road towards his parked car. The road has four lanes with two lanes for vehicles travelling in each direction. During the trial, the northbound lanes were referred to as lanes 1 and 2, -- 3 of 37 -- [2026] SASCA 55 The Court 2 and the southbound lanes were referred to as lanes 3 and 4. Mr Walsh was crossing the road from east to west, stepping onto lane 4 and moving towards lane 3. As the appellant travelled southbound, her vehicle struck Mr Walsh as he neared the centre line of the road. The appellant did not brake, swerve or take any evasive action. Nor did she stop her vehicle after colliding with Mr Walsh. Rather, she continued her journey home, leaving Mr Walsh on the road. 8 Mr Walsh died in hospital on 9 July 2021 as a result of injuries sustained in the collision. 9 The prosecution adduced three main bodies of evidence at trial. First, there was evidence from major crash investigators as to their examination of the scene and reconstruction of the collision. Next, there was evidence from witnesses who were present at the time of the collision, as well as police officers who attended shortly afterwards, as to their observations of the visibility and environmental conditions. Finally, Professor Jason White gave evidence about the appellant’s likely blood alcohol concentration at the time of the collision and the effects of alcohol intoxication on a person’s ability to drive a vehicle. 10 In order to explain the basis upon which the appellant contends that the verdicts on Counts 1 and 2 are unreasonable and cannot be supported by the weight of the evidence, it is necessary to refer in more detail to these three bodies of evidence. The reconstruction evidence 11 The collision reconstruction evidence in this case was primarily given by Brevet Sergeant Gallamore, senior vehicle examiner Elliot McDonald and Sergeant Mark Fulcher. The evidence was directed towards the manner of the appellant’s driving by reference to the position of Mr Walsh on the road before he was struck by the appellant’s vehicle. Mr Walsh’s position on the road was established, in part, by CCTV taken from various businesses surrounding the scene of the collision. 12 Sergeant Fulcher gave evidence that the appellant’s vehicle was travelling south in the right lane of the road and Mr Walsh was walking across the road from east to west. Mr Walsh walked steadily across lane 4 and just before impact, and while in lane 3, he hastened his pace before he was struck by the appellant’s vehicle. 13 The first relevant position was the point at which Mr Walsh’s lower body was illuminated by the headlights of the appellant’s vehicle (as depicted on CCTV). Throughout the trial (and appeal), the evidence in relation to this position was referred to as scenario 1. The reconstruction evidence suggested that the appellant’s vehicle was travelling at 45 kph at the point of impact and Mr Walsh’s lower body was illuminated by the vehicle’s headlights about 27.5 metres and 2.2 seconds before the collision. This was about the same time Mr Walsh moved from lane 4 to lane 3 of the southbound lane. -- 4 of 37 -- [2026] SASCA 55 The Court 3 14 The second relevant position was the point at which Mr Walsh stepped from the kerb and onto the road (as depicted in the CCTV), which was referred to as scenario 2. The prosecution evidence suggested this occurred about 78.5 metres and 6.28 seconds before the point of impact based on the appellant’s vehicle travelling at 45 kph. 15 In the context of both scenarios, Sergeant Fulcher also gave evidence about perception responses. He explained that the concept of perception response relates to the time between a driver initially perceiving a hazard to the time that the driver responds to it. A perception response only relates to an ‘immediate hazard’ where a driver is required to respond to avoid a collision. It does not relate to a ‘potential hazard’. 16 Sergeant Fulcher explained that the first step in a perception response is the detection and recognition phase. This is when a driver identifies that there is an immediate hazard, for example, seeing a pedestrian ahead. At the point where a driver detects and recognises an immediate hazard, the perception response timer commences. The next step is the perception reaction. This involves the decision by the driver to do something to avoid a collision. The final step is the driver’s response such as applying the brakes or turning the steering wheel or taking some other evasive action. 17 Sergeant Fulcher referred to studies which attempted to calculate perception response times for drivers. He relied on a program known as Interactive Driver Response Research (‘the IDRR program’) developed by Dr Jeffrey Muttart. The IDRR program operates so that when certain variables relating to a collision are submitted, the program gives an average perception response time. In this case, the result was an average perception response time of 1.3 seconds to all objects and 1.2 seconds to pedestrians. Using the same data, the results for the response time at the 85th percentile was 1.8 seconds or less. He said that this means that 85 per cent of drivers from the studies would have had a perception response time of 1.8 seconds or less for all objects on the road. He selected the 85th percentile because that is the percentile which is considered ‘standard’ within the collision reconstruction field. 18 Sergeant Fulcher was not prepared to fix a likely perception response time for the appellant’s case. He said that a perception response time is not used in that way. He explained that an average perception response time is obtained which is then compared with the response time of the driver. The IDRR does not establish that a particular driver should have had this perception response time. Rather, the calculation provides a baseline with which to compare a driver’s response. For that reason, Sergeant Fulcher would not say that the appellant should have had a 1.2 second perception response time or, indeed, a 1.8 second response time ‘because everyone is different’. 19 By reference to the CCTV and his examination of the scene, Sergeant Fulcher gave evidence that Mr Walsh first stepped onto the road 6.28 seconds before the -- 5 of 37 -- [2026] SASCA 55 The Court 4 point of impact. Assuming the vehicle was travelling at 45 kph at a constant speed, at the time Mr Walsh stepped onto the road, the appellant’s vehicle was 78.5 metres north of the point of impact. If the driver had seen Mr Walsh stepping onto the road, he then became a ‘potential hazard’ due to the fact there was greater than five seconds to contact. Sergeant Fulcher said that one would expect the driver, in response to having seen a pedestrian on the road as a potential hazard, to lift their foot slightly to slow down ‘because one would be unsure about what the pedestrian is going to do’. 20 Sergeant Fulcher said that Mr Walsh became an immediate hazard when he moved from lane 4 to lane 3. At this point there was 2.2 seconds until the point of impact and a vehicle travelling at 45 kph would have been 27.5 metres from the point of impact. Assuming the driver had seen the pedestrian at this point, and applying a perception response time of 1.2 seconds while travelling at 45 kph, the vehicle would have been 12.5 metres from the point of impact when the vehicle started braking, and able to avoid the collision. However, Sergeant Fulcher said that applying the standard 1.8 second perception response time, the vehicle would have been only five metres from the point of impact at that time the brakes were engaged, and the vehicle started to slow, and the driver would have been unable to avoid the collision. 21 Sergeant Fulcher explained that assuming a speed of 45 kph, the detection of Mr Walsh at the 2.2 second mark, and applying the perception response time of 1.2 seconds, the vehicle could have possibly stopped in time to avoid the collision but would have needed a coefficient of friction of 0.63 or higher. Sergeant Fulcher explained that a coefficient of friction is how slippery the road surface is and that generally, the wetter the road, the lower the coefficient of friction. In Sergeant Fulcher’s opinion, assuming a lower coefficient of friction of 0.63, the vehicle would not have stopped until after the collision. 22 Applying a perception response time of 1.8 seconds and maintaining the other assumptions, including a coefficient of friction of less than 0.63, Sergeant Fulcher said that the appellant’s vehicle would not have stopped until after the point of impact. Evidence as to visibility and environmental conditions 23 The prosecution adduced evidence as to the sources of lighting around the collision scene. There was lighting from the restaurant and the Capri Theatre as well as street lighting. The evidence from the civilian witnesses at the scene of the collision suggested that the lighting conditions were reasonably good. 24 In addition, Brevet Sergeant Gallamore said that when she attended the scene, about an hour after the collision, visibility was good. 25 Sergeant Fulcher arrived at the collision scene at about 11:50pm. He said there was reasonable visibility, and when standing 100 metres north of the point of impact and looking in a southerly direction towards the point impact, visibility -- 6 of 37 -- [2026] SASCA 55 The Court 5 was good. He agreed there were darker areas or shadows on the road caused by trees but considered that visibility in the area improved as one moved closer to the point of impact. 26 As to the weather and road conditions, the evidence suggested that it had been raining at some stage before the collision and the road was damp but that there was not much water on the road. For example, the police were able to spray paint the surface of the road to mark points of interest without the paint running. Most of the civilian witnesses gave evidence that it was not raining or drizzling at the time of the collision. Alcohol intoxication evidence 27 Over a four-hour period, between 6:00pm and 10:00pm, the appellant consumed 1.15 litres of red wine at the hotel. This unchallenged evidence was established by CCTV and cash receipts. Professor White provided an estimate as to the appellant’s blood alcohol concentration at the time of the collision as 0.23 grams of alcohol per 100 millilitres of blood. This estimate was considered conservative and was based on the appellant’s weight, height and sex, and the evidence of her consumption of alcohol that night. 28 Professor White explained that alcohol consumption can impair a person’s concentration, perception and cognitive functioning and can result in disinhibition. Professor White said that the effects of alcohol would materialise at a blood alcohol concentration of 0.08 per cent and would be significantly pronounced at 0.23 per cent. He considered that the effects of a blood alcohol concentration of 0.23 per cent would have a profound impact on a person’s ability to effectively operate a motor vehicle, and impair a person’s ability to detect a pedestrian on the road and respond to a potential collision. 29 Professor White was asked to assume that the appellant had consumed a meal at 5:30pm and that she was a heavy drinker prior to the collision. Assuming those two factors, Professor White recalculated her blood alcohol concentration as about 0.17 per cent. However, Professor White maintained that the effects of alcohol on a person with a blood alcohol concentration of 0.17 per cent would still be very pronounced, and the impact of that level of alcohol consumption on a person’s ability to drive would be significant. The defence case 30 The appellant gave evidence at her trial. The defence case also consisted of expert evidence from Dr Robert Anderson, who attended at the scene and reconstructed the collision in July 2022. The appellant’s evidence 31 The appellant was 31 years old at the time she gave evidence. She said that on the evening of the collision, after finishing work, she drove home. There, she consumed a chicken curry meal before driving to the hotel where she stayed for -- 7 of 37 -- [2026] SASCA 55 The Court 6 about four hours from 6:00pm to 10:00pm. At the hotel, she accepted that she had five drinks (which was established by other evidence to amount to 1.15 litres of wine). She said this was the same amount of alcohol she regularly consumed. When leaving the hotel, she felt ‘perfectly fine’ to drive home. She said the road was wet, but she does not recall if it was raining. She said there was nothing unusual about the weather conditions. 32 The appellant said that she turned onto Goodwood Road and into lane 3 travelling in a southerly direction. She moved from lane 3 to lane 4 and back to lane 3 because there was a vehicle, or possibly several vehicles, parked in the left-hand lane (lane 4). She said that she was traveling under 50 kph. She was familiar with the road as she had driven on it many times. She does not recall observing whether there were premises open on the side of the road. Nor did she notice any glare or reflection of headlights on the road. 33 The appellant said that as she was driving in lane 3, she perceived a shadow on the far-right hand side of her vehicle. The appellant said that she heard a sound, like her car mirror hitting another car mirror. She did not apply her brakes, swerve or stop as she did not think that she had hit a person. 34 The appellant agreed that after hearing the sound, she did not look out of her driver’s side window to see if her side mirror was damaged. Nor did she look at the front windscreen or down the bonnet to see if there was any damage to the front of her vehicle. She said that she gave no thought to investigating the sound at all. She also agreed that she did not look in her rearview mirror to see if she had hit anything behind her or to try and identify the source of the noise. The appellant denied that she did not investigate the noise because she was drunk or because she knew she hit a pedestrian and had made the decision to keep driving. 35 As to the road and environmental conditions, the appellant said that her visibility was ‘average’ for 10:00pm on a winter evening. She did not recall her vision being so poor that she had to change her driving style to suit bad driving conditions. She did not recall there being any dark spots on the road due to the lights being out, but she said that the road did have some dark spots because of trees and other obstructions. She agreed that her headlights illuminated the road in front of her by ‘a bonnet and a bit’. 36 The appellant said that when she returned home, she parked her vehicle in the carport. It was then she saw damage to the vehicle’s right-side panel, but she did not notice any damage to the bonnet. When she saw the damage, she noticed it was ‘more than a car side mirror’. She said that she realised she had been in an ‘accident of some sort’ but did not give any thought to whether she had hit a pedestrian. 37 The appellant said that after assessing the damage to her vehicle, she went inside and had four more glasses of red wine. Her partner came home a short time later and she went to bed. She denied that the reason she continued drinking after -- 8 of 37 -- [2026] SASCA 55 The Court 7 arriving home was because she knew she had been in a collision and needed to have an excuse if the police came to administer a blood alcohol test. 38 The appellant said that she woke up the following morning at about 5:45am and read an article concerning a hit and run on Goodwood Road. After looking at her vehicle for a second time, she thought that she had hit a pedestrian. 39 The appellant spoke to her best friend and on her advice, contacted a solicitor and left a message. She then spoke with another solicitor at about 6:30am. The appellant’s solicitor contacted the police, and she was arrested later that morning. Evidence of Dr Anderson 40 Dr Anderson gave evidence that he attended the collision scene for the first time in July 2022. He conducted an experiment to replicate the lighting and weather conditions of the evening of the collision. His assistant walked across the road in the same position as Mr Walsh and wore similar clothing while Dr Anderson took photographs from various points of the scene. Dr Anderson also measured the ambient light levels using a lux meter in the area where Mr Walsh crossed the road. 41 Dr Anderson said for a driver in the appellant’s position the visibility of Mr Walsh was minimal. Dr Anderson also considered that the general conditions with respect to illumination and conspicuity of pedestrians were poorer than average by virtue of the fact it was nighttime, there were shadowed areas on the road and a low contrast between Mr Walsh and the road. 42 After examining the CCTV footage taken from the hotel and traffic management cameras situated at the intersection of Goodwood Road and Cross Road, Dr Anderson considered that the road was wetter on the night of the collision than when he conducted his experiment in July 2022, and that there would have been reflected light for drivers emanating from the wet road surface. 43 Dr Anderson also considered that the light source from the Capri Theatre interfered with a driver’s detection of a pedestrian on the road because ‘there is a lot going on in the environment’. He referred to this phenomenon as ‘visual clutter’, which he has encountered on numerous occasions when investigating nighttime pedestrian crashes involving a failure by a driver to detect a pedestrian in circumstances where there is a nearby illuminated sign. 44 In relation to the evidence of scenario 1, Dr Anderson was of the opinion that the headlights of the vehicle driven by the appellant illuminated Mr Walsh at least 2.2 seconds before the point of impact when he was situated within lane 3. Based on a slightly higher speed of 48 kph, Dr Anderson considered that the appellant’s vehicle was 29.3 metres from the point of impact when the vehicle’s headlights illuminated Mr Walsh. -- 9 of 37 -- [2026] SASCA 55 The Court 8 45 Dr Anderson was critical of the IDRR program and did not adopt the perception response times based on the IDRR program. Dr Anderson said there is very little information about the likely detection times for drivers of pedestrians in the path of the travel of their vehicle. He said that it is not controversial to assume that a driver’s detection of a pedestrian at night can take over two seconds with perception response times generally starting at 2.5 seconds. It follows that applying this perception response time to scenario 1, any braking effect would likely have occurred at around the point of impact or indeed after the collision with Mr Walsh. The parties’ cases at trial 46 As to Count 1, there was no dispute that the appellant’s vehicle hit Mr Walsh on 30 June 2021 and the injuries he sustained in the collision resulted in his death. There was also no dispute that the appellant drove with a blood alcohol concentration in excess of 0.08 grams per 100 millilitres of blood and the aggravating circumstance was proved. The contested issues were whether the appellant’s failure to keep a proper lookout was grossly defective and constituted dangerous driving and, if so, whether her dangerous driving caused the death of Mr Walsh. These contested issues raised the question of whether a reasonably prudent driver in the circumstances of the appellant would have seen Mr Walsh on the road and had sufficient time to take evasive action to avoid colliding with him. 47 The prosecution case was that the appellant drove with a grossly defective lookout likely caused by alcohol impairment. The prosecution submitted that a reasonably prudent driver in the circumstances of the appellant would have seen Mr Walsh in the moments after he stepped from the kerb onto the road, and approximately 78.5 metres from the point of impact (scenario 2). In the alternative, the prosecution alleged that, at the very least, a reasonably prudent driver in the circumstances of the appellant would have seen Mr Walsh approximately 27.5 to 30 metres from the point of impact when his lower body was illuminated by the headlights of the appellant’s vehicle and even at this point would have been able to avoid the collision (scenario 1). 48 The prosecution alleged that the appellant failed to see Mr Walsh and failed to take any evasive action at all. It was the prosecution case that there was nothing about the environmental conditions which provided an explanation for the appellant’s failure to see Mr Walsh on the road or avoid colliding with him. The only explanation was the appellant’s very high blood alcohol concentration and intoxication. The prosecution alleged that in all the circumstances of this case, the appellant’s lookout was grossly defective such as to constitute dangerous driving and this was a substantial cause of Mr Walsh’s death. 49 As to Count 2, the prosecution alleged that the appellant’s driving was at least careless and a substantial cause of Mr Walsh’s death. The appellant failed to stop and comply with her statutory obligations under the Road Traffic Act 1961 (SA) (‘the RTA’). As to the statutory exceptions under s 43(3)(a) of the RTA, the prosecution alleged that the appellant had not established on the balance of -- 10 of 37 -- [2026] SASCA 55 The Court 9 probabilities that she was unaware of her vehicle having struck Mr Walsh when she continued to drive home. 50 The defence case at trial was that the prosecution had not proved that the appellant’s lookout was grossly defective and that a reasonably prudent driver in the circumstances of the appellant would have seen Mr Walsh on the road and avoided the collision. It was submitted that the environmental conditions, combined with Mr Walsh’s actions in creating a risk to himself by crossing the road when he did, means that the trial judge could not be satisfied that the appellant had an adequate opportunity to see Mr Walsh on the road with sufficient time to avoid colliding with him. 51 As to Count 2, the appellant contended that her driving was not careless and was not a substantial cause of Mr Walsh’s death. While there was no dispute that the appellant had failed to comply with her statutory obligations under the RTA, the appellant gave evidence that she was unaware that her vehicle had struck Mr Walsh. The appellant relied on the statutory exception pursuant to s 43(3)(a) of the RTA, submitting that her lack of awareness of having struck Mr Walsh was reasonable in all of the circumstances. The trial judge’s reasons for verdict 52 The trial judge gave detailed reasons for his verdicts. His Honour summarised the evidence and the parties’ cases and submissions. His Honour set out the elements of both offences and the law relating to the offence under s 19A of the CLCA, as well as the requisite legal directions. Apart from one discrete complaint to which we will turn later, there is no challenge to any of the legal directions. 53 The trial judge observed that the contested issues in the trial devolved to a question of whether the prosecution had proved beyond reasonable doubt that a reasonably prudent driver in the circumstances of the appellant would have seen Mr Walsh on the road and taken evasive action so as to avoid the collision, and whether the appellant’s driving was a substantial cause of Mr Walsh’s death. 54 The trial judge considered the two scenarios related to Mr Walsh’s position on the road when determining whether the appellant’s lookout was grossly defective such as to constitute dangerous driving and a substantial cause of Mr Walsh’s death. 55 As to scenario 1, the trial judge found that the appellant’s lookout was grossly defective and her driving was dangerous, but the collision was unavoidable. His Honour found that a reasonably prudent driver in the situation of the appellant would have seen Mr Walsh on the road when his lower body was illuminated by the vehicle’s headlights as he walked across lane 3 and into lane 4 between 27.5 to 30 metres and 2.2 seconds before the point of impact. His Honour also found that a reasonably prudent driver in the circumstances of the appellant would have, at this point, processed that information and begun to take evasive action by braking. -- 11 of 37 -- [2026] SASCA 55 The Court 10 56 However, the trial judge concluded that ‘a reasonably prudent driver in the situation of the [appellant] with only 2.2 seconds to respond to the emergency presented by Mr Walsh could not have avoided the collision under scenario 1’. It followed that the failure of the appellant to detect Mr Walsh was not a substantial cause of his death. His Honour found that ‘(t)here was not a direct nexus between her manner of driving and the collision, which under that scenario, was unavoidable’. Accordingly, his Honour found that the prosecution had not proved, on that scenario, the appellant’s dangerous driving was a substantial cause of Mr Walsh’s death. 57 As to scenario 2, and the environmental conditions, the trial judge found: • the lighting in the area of the collision was adequate and provided sufficient illumination of the parts of lanes 3 and 4 where Mr Walsh crossed the road; • the road was quite damp and there was considerable reflection from the lights of the restaurant and a degree of glare from the headlights of oncoming vehicles, but this was no more than what is ordinarily encountered by drivers at night; • the environmental conditions were not such that a reasonably prudent driver in the circumstances of the appellant could not adjust their driving to account for those conditions; • the relevant stretch of road had considerable information or ‘cues’ that would have alerted a reasonably prudent driver in the circumstances of the appellant to exercise caution, including a pedestrian sign just north of the restaurant, the lighting of the restaurant itself and the lighting of the Capri Theatre; • a reasonably prudent driver would know that areas where restaurants, bars, cafes, cinemas, or theatres are located are more likely to attract the public and have pedestrian traffic so as to require a driver’s attention to the potential risk posed by pedestrians in the area; • the appellant knew the area and, on her own evidence, had driven on the road hundreds of times; • there were pedestrians and diners on the footpath on both sides of Goodwood Road in the near vicinity of the scene of the collision as well as people across the road at the Eggless Café; • there were no vehicles parked immediately outside the restaurant and no obstruction to the appellant’s view of the area outside the restaurant; and -- 12 of 37 -- [2026] SASCA 55 The Court 11 • the colourful clothing (a red jacket and a bright yellow cap) worn by Mr Walsh and his continuous momentum once he stepped off the kerb and onto the road were factors that would have enhanced his visibility to drivers. 58 The trial judge also proceeded on the most favourable estimate of the appellant’s blood alcohol concentration of approximately 0.17 grams of alcohol per 100 millilitres of blood. 59 Based on these findings, the trial judge concluded that a reasonably prudent driver in the circumstances of the appellant would have detected Mr Walsh as he walked across the first lane of traffic (lane 4). His Honour found that the appellant, by failing to see Mr Walsh in the moments after he stepped onto the road, kept a grossly defective lookout caused by her intoxication which amounted to dangerous driving. His Honour acknowledged that Mr Walsh contributed to the collision and his own death by attempting to cross Goodwood Road in circumstances where there was a risk that he would be struck by a motor vehicle. However, his Honour found that the manner of the appellant’s driving substantially contributed to his death. 60 Based on the unchallenged evidence of Professor White, the trial judge found that the circumstance of aggravation was proved. 61 The trial judge found the appellant guilty of Count 1. 62 As to Count 2, the contested issues were whether the appellant’s driving was careless and whether it caused the death of Mr Walsh. On the same basis as the trial judge found the appellant guilty of Count 1, he found both contested elements of Count 2 proved. His Honour also found that the appellant had not established, on the balance of probabilities, a defence under s 43(3) of the RTA. More specifically, his Honour found that the appellant had not established that she was unaware of having struck a pedestrian causing him serious injury or death when she failed to stop. 63 The trial judge found the appellant guilty of Count 2. Appeal grounds 64 The appellant’s appeal grounds against the convictions (as amended) are in the following terms: 1. The finding of guilt with respect to Count 1 was against the evidence and the weight of the evidence for the following reasons: 1.1 When considering Count 1, the findings of the trial judge in respect of Scenario 2 were insufficient to support a finding of dangerous driving. 1.2 For the purposes of Count 1, the findings in respect of Scenario 2 amount to no more than driving without due care or attention. -- 13 of 37 -- [2026] SASCA 55 The Court 12 1.3 For the purposes of Count 1, there was not, in either Scenario 1 or Scenario 2, any evidence of bad driving upon which to base a finding of dangerous driving. 1.4 When considering Count 1, on the findings for the purposes of Scenario 2, the verdict should have been “not guilty” (as charged) because there was no finding that that driving caused the death. 1.5 The verdict of guilty of Count 1 is inconsistent with the finding (for the purposes of Scenario 1) that there was no causal connection between the driving and the death. 1.6 For the purposes of Count 1, the findings with respect to either scenario failed to have sufficient regard to the evidence of Dr Robert Anderson which supported as a reasonable possibility, which was not rejected by the trial judge, that the defendant did not see Mr Walsh (the deceased) because of a combination of environmental factors, mainly visual clutter, poor lighting, wet road, the glare of lights and the victim’s clothing being of low contrast. 1.7 The verdict on Count 1 and the findings in support of it placed undue weight on cueing, signage, the observations relating to visibility by those not in a car and any requirement to drive prudently. 2. The finding of guilt with respect to Count 2 was against the evidence and the weight of the evidence for the following reasons: 2.1 Based on the findings with respect to Count 1, there was no proved and accepted nexus between the driving and the death of Mr Walsh. 2.2 There is no proved driving without due care or attention for the purposes of this count. Unreasonable verdict – the applicable principles 65 The principles governing a challenge to a verdict on the basis it is unreasonable are well settled. They remain as enunciated by the High Court in M v The Queen.1 In that case, the plurality said:2 Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (Citations omitted) 66 A verdict will be ‘unreasonable’ or ‘not supported having regard to the evidence’ when the appellate court concludes that, on the whole of the evidence, 1 M v The Queen (1994) 181 CLR 487. 2 M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ). -- 14 of 37 -- [2026] SASCA 55 The Court 13 it was not open to the jury to be satisfied of guilt beyond reasonable doubt. In determining whether it was open to the jury to be so satisfied, an appellate court asks itself whether the jury must, as distinct from might, have entertained a reasonable doubt.3 The authorities recognise that, ordinarily, ‘a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’.4 It has been said that where the appellate court has a doubt, the appeal must be allowed unless the jury had an advantage capable of resolving the doubt experienced.5 In Dansie v The Queen, the majority said that the same approach is to be applied by an appellate court in respect of a ground of unreasonable verdict following a trial by judge alone:6 Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function [the independent assessment required by M v The Queen] with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial. The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial… 67 In determining an unreasonable verdict ground, an appellate court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.7 The jury’s advantages are not confined to witness testimony but may extend to all the evidence adduced at trial. As the High Court recently explained in R v ZT:8 …The advantages spoken of are the advantages the jury had, including by the application of the jurors’ collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters, especially witness credibility. The existence, nature and scope of those advantages will vary from case to case depending 3 Libke v The Queen (2007) 230 CLR 559 at [113] (Hayne J). 4 M v The Queen (1994) 181 CLR 487 at 494 (Mason CJ, Deane, Dawson and Toohey JJ), cited with approval in Dansie v The Queen (2022) 274 CLR 651 at [9] (Gageler, Keane, Gordon, Steward and Gleeson JJ). 5 M v The Queen (1994) 181 CLR 487 at 494 (Mason CJ, Deane, Dawson and Toohey JJ). 6 Dansie v The Queen (2022) 274 CLR 651 at [16]-[17] (Gageler, Keane, Gordon, Steward and Gleeson JJ). 7 M v The Queen (1994) 181 CLR 487 at 494 (Mason CJ, Deane, Dawson and Toohey JJ). 8 R v ZT (2025) 281 CLR 137 at [9] (Gaegler CJ, Gleeson, Jagot and Beech-Jones JJ). -- 15 of 37 -- [2026] SASCA 55 The Court 14 on the form in which the evidence was adduced and the nature of the issues that arose at the trial… (Citations omitted) 68 The task for this Court is not to determine whether there is evidence to support the verdict, but rather, upon the Court’s own independent assessment of the evidence, whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of the offence.9 Driving in a manner dangerous to the public 69 In McBride v The Queen,10 the High Court considered the meaning of driving in a manner dangerous to the public. Barwick CJ said:11 The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public, but the need for death or injury to a person to result from impact with a vehicle so driven may make that question unlikely to arise, though the possibility of its doing so must be acknowledged. 70 In Jiminez v The Queen,12 a majority of the High Court referred with approval to the above passage and said:13 The manner of driving encompasses “all matters connected with the management and control of a car by a driver when it is being driven”. For the driving to be dangerous for the purposes of section 52A there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention. Although a course of conduct is involved it need not take place over any considerable period… (Citations omitted) 71 To establish that a defendant’s manner of driving is dangerous, it is necessary to do more than demonstrate a want of due care or attention. The prosecution must demonstrate, beyond reasonable doubt, that the driving was dangerous in the sense that it subjected the public to a risk over and above that ordinarily associated with the driving of a motor vehicle. Those ordinary risks include driving which may, on occasion, include a failure to exhibit due care and attention. 9 Dansie v The Queen (2022) 274 CLR 651 at [7] (Gageler, Keane, Gordon, Steward and Gleeson JJ). 10 McBride v The Queen (1966) 115 CLR 44. 11 McBride v The Queen (1966) 115 CLR 44 at 49-50 (Barwick CJ). 12 Jiminez v The Queen (1992) 173 CLR 572. 13 Jiminez v The Queen (1992) 173 CLR 572 at 579 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ). -- 16 of 37 -- [2026] SASCA 55 The Court 15 72 There may be driving which, although careless, falls short of amounting to dangerous driving and not all departures from the standard of a reasonably prudent driver, even if they cause death, will necessarily be characterised as dangerous. For example, a momentary lapse of attention or mere inadvertence may fall short of dangerous driving.14 73 The question of whether a person was driving in a manner dangerous to the public is determined by reference to an objective standard. It does not matter whether the person subjectively realised that his or her driving was dangerous to the public, nor whether he or she intended to drive dangerously. The character of the driving is tested by reference to whether a reasonably prudent driver in the situation of the accused would have appreciated the danger to the public.15 74 The dangerous driving is required to be a substantial but not the sole cause of death.16 75 With those general principles in mind, we now turn to consider the question of whether the verdict was unreasonable by reference to the particulars of that complaint. In what follows, it is necessary to recognise that, at times, the appellant sought to emphasise, if not over-emphasise, scenario 1 to the exclusion of scenario 2. It is necessary to consider the evidence as a whole, together with the reasons of the trial judge. Whilst the scenarios may have assisted an understanding of the issues, the events on the night of the collision were fluid and dynamic. Ultimately, the trial judge was satisfied of guilt on the basis of scenario 2. In those circumstances, there is a danger in focussing on any one scenario rather than an assessment of the appellant’s driving and lookout on the whole of the evidence. Whether a finding of dangerous driving was supported by the evidence: Particulars 1.1, 1.2 and 1.7 76 The appellant contends that the evidence did not support a conclusion that the appellant’s lookout was grossly defective so as to constitute dangerous driving. More particularly, the appellant emphasises the evidence of Sergeant Fulcher where he said that some drivers would have seen Mr Walsh on the road, but some drivers would not. The appellant also submits that the environmental conditions were such that it was not open to the trial judge to find that a reasonably prudent driver in the circumstances of the appellant would have seen Mr Walsh in the moments after he stepped onto the road. 77 When considering the import of Sergeant Fulcher’s evidence, it is necessary to set out (in full) the relevant parts of his evidence to place his statement that some drivers would have seen Mr Walsh and other drivers would not, in its proper context. 14 R v Mayne (1975) 11 SASR 583. 15 Kroon v The Queen (1990) 55 SASR 476 at 477-478 (King CJ). 16 R v Leaf-Milham (1987) 47 SASR 499 at 503 (White J, Legoe and von Doussa JJ agreeing), citing with approval R v Mayne (1975) 11 SASR 583 at 589 (Bray CJ). -- 17 of 37 -- [2026] SASCA 55 The Court 16 78 In his evidence, Sergeant Fulcher drew a distinction between immediate hazards and potential hazards to a driver. He said that an immediate hazard is one that will require an emergency response from a driver ‘…typically less than five seconds to contact’, while a potential hazard is ‘something that may be crossing into your path, but it has more than five seconds to contact’. He gave, as an example of a potential hazard, a pedestrian situated on the road but not in the driver’s lane of traffic. He said that a driver’s ‘typical response’ to a potential hazard, such as this, would be to slow down or veer the vehicle away from the pedestrian in the driver’s own lane of traffic. 79 Sergeant Fulcher considered that Mr Walsh did not become an immediate hazard until he moved from lane 4 into lane 3 and was ‘intruding into the path of the car’. He said that this occurred about 2.2 seconds and 27.5 metres from contact (scenario 1). However, Sergeant Fulcher considered that Mr Walsh was nonetheless a potential hazard from the moment he stepped from the kerb onto the road (scenario 2). 80 Sergeant Fulcher agreed that a driver need not do anything at the point when a pedestrian was a potential hazard. However, his evidence in this regard assumed that a driver had seen the pedestrian and had taken measures to prepare for the pedestrian moving into the driver’s lane. His evidence, in response to questions asked by the prosecutor, was as follows: Q: So a driver who has seen someone about to cross, is aware of their presence and is acting accordingly for that potential for that pedestrian to come in their lane effectively. A: Yes. Q: But they're not in their lane so they don't need to do anything at that point. A: That's correct. 81 Sergeant Fulcher’s evidence was not to the effect that a driver, upon detecting a pedestrian on the road who was not in the driver’s lane of traffic or an immediate hazard, did not need to respond by driving defensively. Indeed, Sergeant Fulcher said to the contrary. He said that in the circumstances of the present case, if a driver had seen Mr Walsh in the moments after he stepped onto the road (scenario 2), he would expect a driver to ‘lift [his or her] foot slightly to slow down because you are not sure of what the pedestrian is going to do.’ 82 As mentioned earlier, the appellant relies on Sergeant Fulcher’s evidence that some drivers would have seen Mr Walsh on the road, but some drivers would not. The appellant places considerable emphasis on this evidence (in combination with environmental conditions at the collision scene) in support of her contention that it was not open to the trial judge to find that the appellant’s lookout was grossly defective. Sergeant Fulcher’s evidence was as follows: -- 18 of 37 -- [2026] SASCA 55 The Court 17 Q: Now we spoke about the topic of how conspicuous the driver was or not at a particular point in time. I take it you can't say when and if when or if at all the driver of that Kia actually perceived or didn't perceive the pedestrian, is that right. A: No, I can't. Q: That's just simple guesswork. A: Yes. Q: From your part. A: Yes. Q: Do you have an opinion as to whether the pedestrian would have been conspicuous to an attentive driver at any particular point in time in the scenarios we have been dealing with. A: Yes, the pedestrian would likely to have become conspicuous as he is walking across the front of the vehicle fully illuminated by the headlights because he is centrally within the driver's vision, he's not in the peripheral vision, he's centrally within their vision, illuminated by the headlights and moving across the front of the car. Q: In this analysis, that's the 2.2 second mark, is that right. A: That he's illuminated and walking across during that period, yes. Q: It happens to coincide both when you see the legs light up in the footage from the headlights. A: Yes. Q: And when he's entering into lane 3 from lane 4. A: Yes. Q: It might have been possible that an attentive driver could have perceived that pedestrian at an earlier point in time, is that right. A: Yes. Q: They could have perceived that person from the 3 second mark or the 5 second mark or even the 6 second mark. A: Yeah, any of that is possible, yes. Q: As the timing increases, the ability to stop in time increases. A: Yes. HIS HONOUR -- 19 of 37 -- [2026] SASCA 55 The Court 18 Q: Why do you say possible based on your observations of the lighting in the area or other factors and his clothing or why possible. A: Based on I don't know what any driver is able to see. Some would see it, some wouldn't. Everybody is different, so you can't really make a determination that this driver should have seen this or that driver should have seen that but having been there on the night and seen the ambient lighting etc., it would have been possible for some people to have seen him. XN Q: From how far away are you talking? (Emphasis added) 83 Defence counsel then objected to this line of questioning. After a brief discussion with the trial judge, the prosecutor changed topics. 84 One of the ultimate issues for the trial judge to determine was whether the prosecution had proved that the appellant drove with a grossly defective lookout. This turned on whether a reasonably prudent driver in the circumstances of the appellant would have seen Mr Walsh in the moments after he stepped on the road. The questions asked of Sergeant Fulcher were as to the ultimate issue to be decided by his Honour and were objectionable. Moreover, Sergeant Fulcher’s answers were in response to leading questions asked by the prosecutor, and for that reason, can be accorded limited weight by this Court in a consideration of whether the verdict was unreasonable. 85 Moreover, when answering those leading questions on the ultimate issue, Sergeant Fulcher did not explicitly take into account the whole of the relevant evidence, including all the environmental conditions attending the collision scene. It is apparent that Sergeant Fulcher was hesitant about placing himself in the position of an ‘attentive’ driver in the circumstances of the appellant and giving a definitive answer as to whether an ‘attentive’ driver would have seen a pedestrian at various points on the road. His reluctance to do so was appropriate bearing in mind this was one of the ultimate issues to be decided by the trial judge. 86 The appellant also relies on the evidence of various environmental conditions at the scene of the collision in support of her contention that the verdict was unreasonable. The appellant contends that the combination of the following environmental features meant that a reasonably prudent driver would not have seen Mr Walsh on the road before it was too late to avoid the collision. 1. Mr Walsh stepped off the kerb and onto the road into a poorly lit area that was overshadowed by street trees. 2. By virtue of his clothing, Mr Walsh would have presented as ‘low contrast’ to the road. -- 20 of 37 -- [2026] SASCA 55 The Court 19 3. The road was wet or at the very least damp at the relevant time and there were various sources of light spilling onto the road from the hotel, the Capri Theatre, streetlights and lights from oncoming vehicles such that a driver would have experienced glare from the road. 4. The evidence of Dr Anderson as to ‘visual clutter’. 5. The evidence of Dr Anderson that a light (lux) meter provided readings that measured two-and-a-half lux such ‘… that the light was below that sort of criteria for direct observation’. 6. The photographs of the collision scene taken by Dr Anderson depicting poor lighting (Exhibit D15, photographs 13 and 14). 7. The evidence of Dr Anderson as to the difficulties associated with the nighttime detection by drivers of pedestrians adjacent to roads. 87 The appellant contends that these environmental conditions, combined with Sergeant Fulcher’s evidence that ‘some would see [a pedestrian in the position of Mr Walsh], some wouldn’t’, means that the evidence did not support the trial judge’s conclusion that the appellant’s lookout was grossly defective and a substantial cause of the collision and death of Mr Walsh. 88 On our independent assessment of the whole of the evidence, we are satisfied that the trial judge’s findings were not unreasonable and were properly open on the evidence. It was open to his Honour to conclude that a reasonably prudent driver in the circumstances of the appellant would have seen Mr Walsh in the moments after he stepped onto the road, and the appellant’s failure to detect Mr Walsh was grossly defective and constituted driving in a manner dangerous to the public; and was a substantial cause of the collision and death of Mr Walsh. 89 The preponderance of the evidence supported a finding that the area surrounding the collision was well lit. While there was evidence of some more darkly shaded areas by virtue of the street trees, there was light emanating from the hotel and the Capri Theatre, as well as street lighting. While it is to be accepted that there was evidence of some shadowing of the streetlights by the bare branches of large roadside trees and a degree of reflected light from the wet or damp road, the evidence of witnesses, and the evidence of the police officers who were at the scene shortly after the collision, overwhelmingly established that the lighting in the area was adequate. The lighting provided sufficient illumination of the relevant part of the road for a reasonably prudent driver in the circumstances of the appellant to see Mr Walsh moments after he stepped onto the road. 90 It is also to be accepted that there were obvious limitations on the observations of the witnesses as to the lighting conditions, because they were not in the position of the appellant as the driver of the vehicle. However, their evidence was supported by the evidence of Brevet Sergeant Gallamore and Sergeant Fulcher. Brevet Sergeant Gallamore did not require a torch to conduct -- 21 of 37 -- [2026] SASCA 55 The Court 20 her work around the scene. Sergeant Fulcher stood 100 metres north of the point of impact and looked in the direction of the collision. Whilst acknowledging there were darker areas on the road, Sergeant Fulcher stated that there was reasonable visibility and he could see everything. 91 As to Mr Walsh’s clothing being ‘low contrast’, this relies on the evidence of Dr Anderson that by virtue of Mr Walsh’s clothing (comprising of a red jacket, yellow hat and jeans), Mr Walsh would have presented as ‘low contrast’ to his surroundings. However, Sergeant Fulcher expressed the opinion that Mr Walsh’s clothing would be ‘fairly conspicuous’ when he was standing on the footpath and directly under the light, but less conspicuous when he was standing in the middle of lane 3 where there was only ambient light. While the relatively low contrast of Mr Walsh’s clothing as he moved into the ambient light is certainly a relevant factor, it did not, whether alone or in combination with other matters, render the verdict unreasonable bearing in mind the other evidence as to the adequate level of visibility that evening. 92 In relation to the glare from oncoming vehicles emanating from the wet road and other light sources, both Dr Anderson and Sergeant Fulcher gave evidence that wet road conditions can result in glare which may prove an impediment to visibility. In relation to Dr Anderson’s opinion that the road was wet (as opposed to damp) on the evening of the collision, this was inconsistent with the observations of the witnesses at the scene that night. The traffic camera footage from a location further north of the collision point (which Dr Anderson relied upon) was of little assistance to him in determining the condition of the road near the point of impact. 93 While it is true that there had been rain earlier in the evening, and the road may have been damp such as to produce some glare from the headlights of oncoming traffic, on the evidence this was not a serious impediment to the conspicuity of Mr Walsh. It had not been raining heavily, and it was not raining at the time of the collision. Nor was the appellant driving towards vehicles with their lights on high beam in circumstances where weather conditions required other drivers to use high beam. Further, and significantly, the appellant gave evidence that she was not conscious of any glare from oncoming vehicles. Indeed, she said that she did not have to adjust her driving to account for the damp conditions. 94 In relation to the notion of ‘visual clutter’, the appellant relies on Dr Anderson’s evidence that the light source from the Capri Theatre created visual clutter. Dr Anderson’s evidence about the effect of ‘visual clutter’ on a driver’s detection of pedestrians at nighttime was based on his experience of investigating numerous crashes of this kind in circumstances where there is an illuminated sign nearby. The appellant contends that the trial judge, in rejecting this evidence because of the lack of empirical research or studies, ignored other evidence from Dr Anderson about studies that revealed nighttime detection of pedestrians can be problematic. -- 22 of 37 -- [2026] SASCA 55 The Court 21 95 We are satisfied that neither body of evidence could be accorded much weight. As to the former, there does not appear to be any studies or literature to identify the effect of visual clutter or illuminated signs on a driver’s ability to detect pedestrians at nighttime. As to the latter, it is important to observe that the appellant had significant experience driving on this stretch of road in all conditions. Moreover, Sergeant Fulcher also gave evidence as to there being ‘cues’ alerting a driver to exercise caution along Goodwood Road near the collision site. The evidence established that there were various venues open and illuminated that night, and there was a sign warning of pedestrians shortly before the area of the collision. As a matter of common sense, these matters would have warned drivers that there may be increased pedestrian traffic in the area, and there was a need for drivers to proceed carefully and drive with caution. 96 The appellant relies on the evidence of Dr Anderson that a study involving the nighttime detection of pedestrians demonstrated that in one quarter of cases, the persons involved in the study failed to observe a pedestrian adjacent to the path of the vehicle. This study is of limited weight. The study related to observations made by passengers in vehicles on a closed circuit and was undertaken to determine whether there was a change in response times to the presence of pedestrians who were wearing reflective clothing as opposed to non-reflective clothing. This finding is of little relevance when considering the issue in dispute in this case, namely, whether a reasonably prudent driver in the situation of the appellant would see Mr Walsh in the moments after he stepped onto the road. The evidence certainly does not undermine the prosecution case that the appellant’s lookout was grossly defective. 97 Even accepting there was some visual clutter which would have impaired a driver’s ability to detect Mr Walsh (such as the light emanating from the Capri Theatre), we are satisfied that this matter would have little effect on the ability of a reasonably prudent driver in the situation of the appellant to see Mr Walsh in the moments after he stepped onto the road. 98 The appellant also relies on Dr Anderson’s evidence as to the adequacy of the lighting by reference to the light lux meter and the photographs he took at the scene in July 2022. 99 We consider the experiment conducted by Dr Anderson about one year after the collision involving the light lux metre measurements and photographs is of limited use in our independent assessment of the conditions on the night of the collision. This is largely because the experiment was conducted under different conditions from the night of the collision. On the evening of the experiment, the lights inside the restaurant and the floodlights outside the restaurant were not operating, and there were no headlights approaching the area from the appellant’s direction of travel. Accordingly, the experiment did not sufficiently replicate the driving conditions of the night of the collision for it to be given much, if any, weight. -- 23 of 37 -- [2026] SASCA 55 The Court 22 100 In relation to the photographs, Sergeant Fulcher gave the following evidence in cross-examination: Q: In respect of those two photographs, do you say and I quote from your rebuttal ‘And I can attest that the lighting as produced in those photographs is similar to the lighting I experienced when I attended the scene on the night of the collision.’ A: Yes. Q: Now are you able to see the person in the middle of the road or halfway across the road. A: Yes. Q: You would accept not well. A: They are dark, yes. Q: Do you accept that in those photographs the person who is in the position that Mr Walsh may have been in, is barely discernible in the photograph. A: In these photographs, yes, but these ones are not great quality either. Q: All right. When you say that in your rebuttal that the lighting as produced in these photographs is similar to the lighting that you experienced on the night in question, you adhere to that. A: Yes. 101 It is evident that Sergeant Fulcher qualified his answer that the lighting in the photographs was similar to the lighting on the night of the collision by reference to the poor quality of the photographs. It is also important to note that at the time of the experiment and when the photographs were taken, as mentioned earlier, the lights inside and the floodlights outside the restaurant were not operating and there were no headlights approaching the area from the appellant’s direction of travel. While the photographs and the evidence of Sergeant Fulcher as to their comparison with the lighting on the evening was a relevant factor, this evidence did not significantly undermine the prosecution case because the photographs were taken in materially different conditions and were of poor quality. In addition, the pedestrian in the photographs (representing Mr Walsh) was in any event discernible. 102 In relation to Mr Walsh’s visibility, the appellant also contends that the lighting from the Eggless Café would not have added to his detectability given the café is situated further south and not near the restaurant. We do not agree. The Eggless Café was only 30 metres south of the point of impact and sufficiently close to the restaurant and the position of Mr Walsh as he stepped onto the road to add (with other sources of light) to his visibility. 103 As to the appellant’s separate complaint in the written submissions (but not the subject of a separate ground of appeal) that the trial judge misstated the legal -- 24 of 37 -- [2026] SASCA 55 The Court 23 test for dangerous driving, we do not consider that his Honour ultimately applied the wrong test. There are two discrete passages in his Honour’s reasons for verdict where the test for dangerous driving (in the context of a grossly defective lookout) is articulated as being whether a reasonably prudent driver in the circumstances of the appellant could have seen Mr Walsh on the road. The correct test is whether a reasonably prudent driver in the circumstances of the appellant would have seen Mr Walsh on the road. To pose the question in the term used by his Honour in these two discrete passages may suggest a lower standard of proof akin to the prosecution having to prove that a reasonably prudent driver would likely have seen Mr Walsh on the road. 104 In relation to Scenario 2, his Honour at one point of his reasons said:17 I accept to prove that the accused was driving in a manner dangerous to any person the prosecution must exclude as a reasonable possibility a reasonably prudent driver in the same or similar situation of the accused could not have detected Mr Walsh. (Italics and emphasis added.) 105 Later in his reasons, his Honour said:18 In this case it will be necessary to assess, having regard to all relevant factors, whether a reasonably prudent driver in the situation of the accused could have seen Mr Walsh as he crossed lane 4 and was about to enter lane 3 where he was struck by the accused’s car. (Italics and emphasis added.) 106 However, when concluding that the appellant’s driving was dangerous, his Honour ultimately articulated the legal test correctly in the following terms:19 I am satisfied on all the evidence that a reasonably prudent driver in the position of the accused could have detected Mr Walsh when he stepped off the kerb on to the road, or moments after that point. I am satisfied that a reasonably prudent driver would have seen Mr Walsh as he walked across lane 4 and before he entered lane 3. (Emphasis added.) 107 Moreover, earlier in his reasons for verdict, and in relation to scenario 1, his Honour said:20 It follows from the evidence that a prudent driver in the situation of the accused would have detected Mr Walsh when he was first illuminated and responded by braking whether or not the braking effect occurred before impact with Mr Walsh or after impact. (Emphasis added.) 17 R v Willgoose [2024] SADC 158 at [825] (Alexandrides DCJ). 18 R v Willgoose [2024] SADC 158 at [827] (Alexandrides DCJ). 19 R v Willgoose [2024] SADC 158 at [891] (Alexandrides DCJ). 20 R v Willgoose [2024] SADC 158 at [754] (Alexandrides DCJ). -- 25 of 37 -- [2026] SASCA 55 The Court 24 108 His Honour later said in relation to scenario 1:21 The evidence of the accused’s failure to respond in any way to the presence of Mr Walsh on the road at a point when a reasonable person in the situation of the accused would have detected him and taken some action to avoid the collision, together with the evidence of alcohol concentration and its effects, demonstrate that the accused was incapable of exercising effective control over the vehicle. (Emphasis added.) 109 The trial judge’s statements that the prosecution must exclude as a reasonable possibility a reasonably prudent driver in the same or similar situation of the accused could not have detected Mr Walsh on the two occasions outlined above cannot have affected the result because his Honour correctly directed himself on the test for dangerous driving at other parts of his reasons for verdict. 110 Moreover, and significantly, the trial judge explicitly found that a reasonably prudent driver in the circumstances of the appellant would have seen Mr Walsh as he walked across lane 4 and before he entered lane 3. Lack of evidence of overtly bad driving: Particular 1.3 111 In contending that the verdict is unreasonable, the appellant also relies on the absence of evidence of ‘bad driving’ by the appellant. As outlined earlier, the prosecution case was that the appellant’s grossly defective lookout amounted to dangerous driving, which rested on an anterior finding that a reasonably prudent driver in the circumstances of the appellant would have seen Mr Walsh in the moments after he stepped onto the road. The prosecution case, by its very nature, did not allege or rely on any overt acts of bad driving by the appellant such as speeding, ‘hoon driving’ or undertaking some other dangerous manoeuvre such as overtaking in an inappropriate location. Rather, the prosecution case relied on evidence of the appellant’s failure to keep a proper lookout when driving. 112 In the present case, the prosecution alleged that the appellant’s failure to keep a proper lookout was likely caused by her significant alcohol intoxication, and a reasonably prudent driver (that is, a sober one) in the circumstances of the appellant would have seen Mr Walsh in the moments after he stepped onto the road, and having detected him would have taken evasive action and avoided colliding with him. No other overt or ‘intrinsically bad’ act of driving was required to prove the offence. Causation: Particulars 1.4 and 1.5 113 Under these particulars, the appellant contends that there was no finding by the trial judge that the appellant’s driving caused the death of Mr Walsh under scenario 2; and if there was such a finding, it is inconsistent with the finding that causation was not proved under Scenario 1. 21 R v Willgoose [2024] SADC 158 at [818] (Alexandrides DCJ). -- 26 of 37 -- [2026] SASCA 55 The Court 25 114 In his reasons for verdict, the trial judge concluded:22 Scenario 2 concerns the manner of the accused’s driving from when Mr Walsh first stepped off the kerb onto Goodwood Road 6.28 seconds before the collision. In these reasons I have found that a reasonably prudent driver in the situation of the accused would have seen Mr Walsh as he stepped off the kerb onto the road or momentarily later. I have found that the failure of the accused to detect Mr Walsh was due to her grossly defective lookout caused by her intoxication and that therefore she was driving in a manner dangerous to any person. I am satisfied beyond reasonable doubt that had the accused kept a proper lookout, she would have seen Mr Walsh and taken appropriate action and avoided the collision. There is no dispute that the collision resulted in the death of Mr Walsh. It is acknowledged that Mr Walsh contributed to the collision and his own death by attempting to cross Goodwood Road in circumstances where there was a risk that he would be struck by [a] motor vehicle. As discussed, Mr Walsh’s level of intoxication likely contributed to his decision to cross the road and not allow sufficient time to do so, creating a risk to himself. However, the prosecution is not required to establish that the manner of the accused’s driving was the sole cause of Mr Walsh’s death. It is required to prove that the accused’s driving was a substantial cause. Accordingly, I am satisfied that the manner of the accused’s driving caused the death of Mr Walsh in the sense that it substantially contributed to his death. 115 The trial judge in that passage clearly found that the appellant’s driving substantially contributed to the death of Mr Walsh. Accordingly, his Honour found causation proved. His Honour’s finding in this regard was not inconsistent with his conclusion that the prosecution had not established the appellant’s dangerous driving under scenario 1 was a substantial cause of Mr Walsh’s death. This is because his Honour found that a reasonably prudent driver in the situation of the appellant had only 2.2 seconds to respond to the emergency presented by Mr Walsh and could not have taken evasive action and avoided the collision in such a short space of time. Under scenario 2, the appellant had about six seconds to respond to the presence of Mr Walsh on the road. 116 We are also satisfied that it was open to the trial judge to find that the appellant’s grossly defective lookout was a substantial cause of the death of Mr Walsh. 117 As mentioned earlier, the prosecution is not required to prove that a defendant’s dangerous driving is the sole cause of another person’s death. The legal test for causation allows for other contributory causes. While it is to be accepted that Mr Walsh placed himself at some risk by attempting to cross the road at the time and place where he did, it remained the case that a reasonably prudent driver in the circumstances of the appellant would have seen Mr Walsh in the moments after he stepped onto the road, and been able to avoid the collision. 22 R v Willgoose [2024] SADC 158 at [925]-[930] (Alexandrides DCJ). -- 27 of 37 -- [2026] SASCA 55 The Court 26 118 There is a clear nexus between the appellant’s grossly defective lookout and Mr Walsh’s death. Had the appellant been keeping a proper lookout, she would have seen Mr Walsh in the moments after he stepped onto the road and adjusted her driving to avoid the collision (for example, by slowing down, preparing to apply the brakes, moving away from Mr Walsh within her lane or indeed, changing lanes). It follows that we are satisfied that the appellant’s failure to keep a proper lookout substantially contributed to the collision and Mr Walsh’s death, and causation was proved under scenario 2. Evidence of Dr Anderson: Particular 1.6 119 The appellant relies on Dr Anderson’s evidence that there were various environmental factors at the collision scene which provided an explanation for the appellant’s failure to see and detect Mr Walsh. We have had regard to the evidence of Dr Anderson as to those various environmental conditions earlier in these reasons, and for the reason outlined earlier, we do not consider that any of those matters, either individually or in combination, rendered the verdict unreasonable or not supported by the evidence. 120 To the extent that the appellant complains that the trial judge failed to have proper regard to the evidence of Dr Anderson, we do not agree. His Honour summarised Dr Andersons’s evidence in considerable detail and specifically addressed his evidence about factors that would have impacted upon the appellant’s lookout and the visibility and conspicuity of Mr Walsh including the potential for glare from the wet road and oncoming traffic, the dark spots on the road, visual clutter, poor lighting (as demonstrated by the lux meter and photographs), and the low contrast of Mr Walsh’s clothing. There was no inadequacy in the trial judge’s treatment of, and reasons for rejecting or placing limited weight on the evidence of Dr Anderson. 121 Standing back and considering the whole of the evidence, we are satisfied that it was open to the trial judge to find that a reasonably prudent driver in the circumstances of the appellant would have seen Mr Walsh in the moments after he stepped onto the road (scenario 2). We are also satisfied that it was open to his Honour to conclude that, having detected Mr Walsh, a reasonably prudent driver in the circumstances of the appellant would have exercised caution and taken evasive action so as to avoid the collision. The evidence established that the appellant did not respond at all. There was no evidence of the appellant slowing down, swerving or braking. 122 On our own independent assessment of the evidence, we are satisfied that it was open to the trial judge to find that the appellant failed to keep a proper look out because of her significant blood alcohol concentration. The appellant’s high level of intoxication rendered her unable to detect Mr Walsh on the road in circumstances where a reasonably prudent driver in the circumstances of the appellant (but sober) would have seen him and taken evasive action so as to avoid the collision. The appellant’s lookout was grossly defective and went beyond the -- 28 of 37 -- [2026] SASCA 55 The Court 27 ordinary risks of road users so as to amount to driving in a manner dangerous to the public. The appellant’s grossly defective lookout was a substantial cause of the collision and death of Mr Walsh. 123 For those reasons, the verdict on Count 1 was not unreasonable. 124 It follows that Ground 2 of the appeal and the unreasonable verdict complaint in relation to Count 2, which was argued on the basis that the evidence did not support a finding that the appellant was driving carelessly necessarily fails and should also be dismissed. 125 We dismiss the appeal against conviction. Appeal against sentence 126 For the offence of aggravated causing death by dangerous driving (Count 1), the sentencing judge imposed a sentence of six years’ imprisonment. For the offence of leaving an accident scene after causing death by careless driving (Count 2), his Honour imposed a sentence of three years’ imprisonment. His Honour ordered that two years of the sentence on Count 2 be served cumulatively on the sentence imposed for Count 1. 127 This resulted in a head sentence of eight years’ imprisonment. A non-parole period of five years and eight months was fixed, which complied with the minimum non-parole period prescribed by s 47(5)(d) of the Sentencing Act 2017 (SA) (‘the Sentencing Act’). 128 The head sentence and non-parole period were ordered to commence on 5 March 2025. 129 The sentencing judge found there was not good reason to suspend the sentence, and that it was not appropriate that the sentence be served on home detention. 130 The mandatory licence disqualifications were also made with the appellant being disqualified from holding or obtaining a driver’s licence for 12 years in respect of Count 1 and for 10 years in respect of Count 2. 131 The appellant contends that the sentence was manifestly excessive (Grounds 4, 5 and 6). The appellant also contends that the sentencing judge made specific errors when considering the appellant’s remorse (Ground 1) and whether the deceased’s conduct mitigated her offending (Grounds 2 and 3). 132 We have already outlined the circumstances of the offending. The appellant was sentenced on the basis that a reasonably prudent driver in the appellant’s position would have seen Mr Walsh after he stepped onto the road (approximately 6.28 seconds and about 78.5 metres prior to the point of impact). The appellant failed to detect Mr Walsh and failed to take any evasive action. Her grossly defective lookout was explained by her alcohol intoxication. The appellant knew -- 29 of 37 -- [2026] SASCA 55 The Court 28 she had hit a pedestrian. Despite this, she failed to stop or render any assistance and instead continued to drive home. She did not meet her statutory obligations under the RTA. 133 As to the appellant’s personal circumstances, she was 29 years old at the time of the offending and 33 at the time of sentencing. She was born in South Australia, and her parents and siblings remained supportive of her. 134 The appellant completed Year 12 before going on to study law at university. She volunteered abroad and worked whilst studying. Upon completing her law degree and the graduate diploma in legal practice in 2015, she obtained employment as a lawyer in Sydney before returning to Adelaide in 2019. Following the offending, she ceased practising as a lawyer and obtained work at MyBudget in January 2023. 135 The appellant has a history of depression and anxiety. Following the collision, she was diagnosed as suffering from a recurrent major depressive disorder. She was prescribed antidepressants which improved her symptoms, but she also required ongoing psychotherapeutic treatment. 136 The appellant commenced her relationship with her partner shortly before the offending. Following the offending, she became pregnant and gave birth to her first child on 22 April 2022. Her mother and partner have been able to care for her son since her incarceration. 137 The appellant has no prior convictions. 138 During the sentencing proceedings, the sentencing judge received victim impact statements from Ms Walsh, Cathy Ludbrook (a friend of Ms Walsh), Lesia Iwaniw (one of the friends present when the offending occurred), Robert Brooke (a close friend of Mr Walsh), Kerry Laskey (the sister of Ms Walsh), Andrew Rothwell (a colleague of Mr Walsh), Colin Field (a close friend and colleague of Mr Walsh) and Timothy Walpole-Walsh (the brother of Mr Walsh). All spoke of their profound loss and grief. They made clear that Mr Walsh was not only a loss to those who knew him, but also to the community generally through his work as a clinical neuropsychologist. The adverse impact of the appellant’s offending is ongoing for the family and friends of Mr Walsh. Grounds 2 and 3 – Reduced responsibility and mitigation 139 Under these grounds of appeal, the appellant contends (as she did before the sentencing judge), that Mr Walsh’s conduct contributed to the collision and for that reason the appellant’s moral culpability and responsibility for the offending was moderated. The appellant relies on Spanjol v The Queen (‘Spanjol’)23 in support of that contention. The appellant also contends that Mr Walsh’s 23 Spanjol v The Queen (2016) 55 VR 350. -- 30 of 37 -- [2026] SASCA 55 The Court 29 contributory conduct, and other matters personal to the appellant, amounted to exceptional circumstances under s 48(2)(b) of the Sentencing Act. 140 In Spanjol, the Victorian Court of Criminal Appeal outlined two propositions in the context of an appeal against sentence for the offence of negligently causing serious injury. These propositions were: first, that an offender’s responsibility and moral culpability may be qualified where it is established that some other person, whether or not the victim, was partly responsible for the manner of the offender’s driving or for the offender’s decision to drive in the first place; and secondly, where an offender establishes that there was an additional factor outside the offender’s control, which was also a material cause of the collision, that circumstance should ordinarily be taken into account in mitigation of sentence. 141 The principles in Spanjol were considered and accepted by this Court in R v Henderson.24 However, the full ambit of those principles and their application can only be ascertained on a case-by-case basis. 142 The principles in Spanjol have no application in this case. The conduct of Mr Walsh did not give rise to any notion of reduced responsibility. Nor was his conduct a material cause of the collision. The trial judge found that Mr Walsh’s decision to cross the road, when he did, created a degree of risk. However, this is a risk that is commonly encountered by drivers. Mr Walsh was not acting illegally in crossing the road at the time and location where he did, and a reasonably prudent driver would have been alert to the potential for pedestrians crossing the road in the area. There was sufficient time for a reasonably prudent driver in the circumstances of the appellant to detect Mr Walsh on the road and to respond to the risk he posed. The appellant’s failure to do so was explained by her significant level of intoxication. The appellant was solely responsible for her decision to drive after having consumed a considerable amount of alcohol, and with a blood alcohol concentration more than three times the legal limit. The appellant alone is responsible for her inability to detect Mr Walsh and take any evasive action. 143 The sentencing judge was correct to conclude that Mr Walsh’s conduct in crossing the road did not materially contribute to the collision and did not mitigate the appellant’s criminal or moral culpability such as to warrant a reduction in her sentence. 144 The sentencing judge was required to impose a four-fifths non-parole period for Count 1 unless satisfied that ‘exceptional circumstances’ existed warranting a lesser period.25 Exceptional circumstances may include that the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct.26 24 R v Henderson (2023) 142 SASR 507. 25 Sentencing Act 2017 (SA) s 47(5)(d). 26 Sentencing Act 2017 (SA) s 48(3)(a). -- 31 of 37 -- [2026] SASCA 55 The Court 30 145 For the same reasons already discussed, there was no basis for finding that exceptional circumstances existed by reason of the conduct or condition of Mr Walsh. Further, the appellant’s personal circumstances, whilst exciting sympathy, were not exceptional. It is commonly the case for a person convicted of this offence to be someone of otherwise good character and with no prior convictions. The appellant’s compromised mental health at the time of the offence, and the impact of a term of imprisonment on her family, particularly her very young child, were of course relevant, but not exceptional. There was no error in the sentencing judge’s conclusion that exceptional circumstances did not exist. Accordingly, he was obliged to fix a non-parole period of four-fifths of the sentence imposed for Count 1. 146 We dismiss these grounds of appeal. Grounds 1, 4, 5 and 6 – Manifest excess 147 These grounds of appeal are interrelated and are all referable to an overarching complaint that the sentence was manifestly excessive. The appellant contends that the overall sentence is manifestly excessive by reason of the sentencing judge: • failing to give adequate weight to the appellant’s remorse (Ground 1); • characterising the offending as towards the very high end of seriousness for offences of this kind (Ground 4); • declining to order that the sentence be served on home detention (Ground 5); and • imposing a sentence in respect of Count 1 that was outside the range of permissible sentences (Ground 6). 148 The relevant principles in relation to manifest excess are well-established27 and need not be repeated. 149 In relation to the question of remorse, during the trial the appellant accepted that she was the driver of the vehicle that struck Mr Walsh and that the collision brought about his death. She also accepted that she had a blood alcohol concentration of not less than 0.17 per cent. However, the appellant challenged the allegations that her lookout was grossly defective, and that her driving was the cause of Mr Walsh’s death. The appellant maintained that position during sentencing submissions, and obviously on appeal. 150 In relation to Count 1, the appellant did not plead guilty to the alternative offence of driving without due care and attention. However, prior to the 27 House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ). -- 32 of 37 -- [2026] SASCA 55 The Court 31 commencement of the trial, she made an offer to resolve this charge by pleading guilty to the alternative offence. This offer was rejected by the prosecution. 151 As to Count 2, during the trial the appellant admitted that she failed to stop and comply with her statutory obligations under the RTA. However, she contended that she did not realise she had hit a pedestrian thus invoking the statutory exception in s 43(3)(a) of the RTA. The appellant maintained that position during the sentencing process. On appeal, the appellant challenged the conviction on Count 2 on the basis that her driving was not careless (contrary to her offer to plead guilty to the alternative offence of driving without due care and attention prior to trial). 152 Following the guilty verdicts, and during the sentencing proceedings, the appellant’s counsel read an apology letter to the court. She expressed her sorrow at the loss of life and the impact it had on the relatives and family of Mr Walsh. However, the appellant did not accept criminal responsibility for the offending and maintained her denials of the criminal offences. 153 In his sentencing remarks, the judge said: Your counsel submitted that you have shown remorse for your involvement in the incident in which Mr Walsh was killed, and have accepted responsibility in the sense that you should not have been driving. He contrasted this with your denial of legal responsibility for causing the death of Mr Walsh. Your counsel referred to the opinions contained in the character references about the degree of contrition and remorse you have expressed. … The court has been asked to accept that you have shown remorse and furthermore, it was said that you have “learnt the error of your ways”. It is a well- recognised principle that remorse and an acceptance of responsibility must be taken into account when determining sentence. That principle is reflected in s.11(1)(g) of the Sentencing Act, which requires the court to consider the extent of the defendant's remorse for the offence, having regard to whether the defendant has accepted responsibility for their actions and has acknowledged any injury, loss or damage caused by their actions. The concept of remorse, as used in the Sentencing Act and the acceptance of responsibility is referable to a criminal offence. In my view, it means accepting criminal responsibility for committing the offence. There is no evidence that you have accepted responsibility in that sense. Furthermore, there has been no acknowledgement that the loss of life was caused by your actions. Your personal expressions of sorrow through your written apology and the submissions of your counsel do not acknowledge responsibility for your actions or for the loss caused by your actions. However, I accept that you are genuinely remorseful for the loss of life and the impact this has had on Ms Walsh in particular. Feelings of sorrow, even in the context of acknowledgement that you were involved in the incident, do not amount to accepting responsibility for causing that death, albeit unintentionally. Accordingly, I can only give very limited weight to your expressions of remorse. -- 33 of 37 -- [2026] SASCA 55 The Court 32 154 Section 11(1)(g) of the Sentencing Act provides: 11–Individual sentencing factors (1) In determining a sentence for an offence, a court must take into account such of the factors as are known to the court that relate to the following matters as may be relevant: (a) … (g) the extent of the defendant’s remorse for the offence, having regard in particular as to whether– (i) the defendant has provided evidence that the defendant has accepted responsibility for the defendant’s actions; and (ii) the defendant has acknowledged any injury, loss or damage caused by the defendant’s actions, or voluntarily made reparation for any such injury, loss or damage, or both; 155 Section 11(1)(g) reflects the well-known common law principle that a defendant’s remorse is a relevant mitigating factor to be taken into account on sentence. The provision requires a court to take into account the extent of a defendant's remorse for an offence, having regard to whether the defendant has accepted responsibility for his or her actions and whether a defendant has acknowledged any injury, loss or damage caused by his or her actions. The notion of remorse under s 11(1)(g) is textually tethered to a criminal offence. In the context of this provision being one of various sentencing factors that a court is required to take into account when sentencing a defendant for the commission of an offence, and encapsulates common law principles, we consider that the provision relates to a defendant’s remorse for committing the offence. 156 In this case, as was her right, the appellant denied having committed both offences at trial and maintained those denials on appeal. The appellant did not accept any criminal responsibility for the commission of either offence. Nor did the appellant acknowledge any injury, loss or damage caused by her actions by committing either offence. In those circumstances, the sentencing judge’s conclusion in describing her remorse as limited was entirely appropriate. 157 That is not to say that the appellant’s expressions of remorse for the ‘loss of life’ and the impact of that ‘loss of life’ on Mr Walsh’s family were irrelevant. They were relevant to establish some empathy and insight on the appellant’s part concerning the impact of the death of Mr Walsh on his family. This was in turn relevant (in combination with other matters) to an assessment of her prospects of rehabilitation. However, as the sentencing judge found, without any acceptance of criminal responsibility, the appellant’s expressions of remorse could only be accorded limited weight. There was no error in proceeding in this way. -- 34 of 37 -- [2026] SASCA 55 The Court 33 158 We turn now to consider the more difficult question of whether the sentence was manifestly excessive. There were several serious features to this offending. The appellant chose to drive when she was grossly intoxicated with a blood alcohol concentration of 0.17 per cent, which is over three times the legal limit. She deliberately drove in circumstances where she had alternative options. She could have easily contacted her partner or a friend or ordered a taxi or uber. Rather, the appellant chose to drive while grossly intoxicated and gave no thought to the risk she posed to other road users and pedestrians. Further, the appellant’s actions have had a profound impact on the family and friends of Mr Walsh, which is ongoing. 159 As is recognised by ss 3 and 4 of the Sentencing Act, it is necessary for courts to consider the safety of the community as well as the secondary considerations of deterrence (whether personal or general), denunciation and punishment. The sentence in this case needed to properly reflect those sentencing objectives. 160 In support of her complaint of manifest excess, and while acknowledging the serious features of her offending, the appellant emphasises matters personal to her including that she is otherwise of good character, her lack of prior convictions, and good work history. The appellant also submits that she had made efforts to address her poor mental health which means that she is at low risk of re-offending. The appellant also emphasises the adverse impact of her incarceration on her very young son. 161 The appellant relies on several authorities and submits that the offending in these cases was more egregious, but similar or more lenient sentences were imposed: R v Henderson,28 R v Martain,29 Trewren v The King30 and Hueppauff v The Queen.31 162 Notwithstanding the serious features of this offending, including the appellant’s high blood alcohol concentration of 0.17 per cent, we consider that a starting point of six years’ imprisonment in relation to Count 1 was outside the permissible range for this offence and offender. The gravamen of the offending was the appellant’s grossly defective lookout which was explained by her high level of alcohol intoxication. It is to be accepted that this was a serious example of a grossly defective lookout by reason of the appellant’s intoxication and the fact she did not take any evasive action. However, there were none of the other aggravating features which often attend more serious examples of this type of offence such as speeding, undertaking dangerous manoeuvres, ‘hoon driving’ or drag racing, driving while disqualified or driving in a manner dangerous for a lengthy period or over an extended distance. 163 More significantly, there were aspects of the appellant’s personal circumstances which called for the sentence to be moderated. In particular, she was 28 R v Henderson (2023) 142 SASR 507. 29 Martain v The King [2023] SASCA 104. 30 Trewren v The King [2023] SASCA 100. 31 Hueppauff v The King [2024] SASCA 11. -- 35 of 37 -- [2026] SASCA 55 The Court 34 the primary carer of a very young son and there was evidence that, despite the best efforts of her family, her separation from her child would have a poor impact upon him. She also had no prior convictions and good prospects of rehabilitation. The appellant had received some extra curial punishment by the loss of her career. In the circumstances of this case, we consider a sentence of six years’ imprisonment was manifestly excessive. 164 As to the complaint that the sentencing judge erred by declining to order that the sentence be served on home detention, we disagree. A home detention order in the circumstances of this case would simply not provide condign punishment nor sufficiently meet the sentencing objectives of denunciation and general deterrence. 165 There was no challenge to the length of the sentence imposed on Count 2. Re-sentence 166 In re-sentencing the appellant, we have regard to the circumstances of the offending and the appellant’s personal circumstances already outlined. In relation to the offence of aggravated causing death by driving in a manner dangerous to the public (Count 1), we impose a sentence of five years’ imprisonment. In relation to the offence of failing to stop (Count 2), we impose a sentence of three years’ imprisonment, and we would make 12 months of that sentence cumulative on the sentence for Count 1. While this was a separate incursion into crime, it was connected in time and circumstance with the earlier offence, and the sentencing objectives have largely been met by the earlier term of imprisonment. 167 This results in a head sentence of six years’ imprisonment for both offences. We fix a non-parole period of four years’ imprisonment, that being four-fifths of the head sentence for Count 1. We order that the sentence commence on 5 March 2025. 168 We disqualify the appellant from holding or obtaining a driver’s licence for 12 years in relation to Count 1, and for 10 years in relation to Count 2. The two periods of licence disqualification are to run concurrently and commence on the date of the appellant’s release from custody. Orders 169 As to the appeal against conviction, we grant an extension of time to file the notice of appeal. We grant permission to appeal, but dismiss the appeal. 170 As to the appeal against sentence, we grant permission to appeal, allow the appeal on Ground 6 and make the following orders: 1. The sentence imposed in the District Court is set aside. 2. The appellant is re-sentenced to a term of imprisonment of six years, with a non-parole period of four years, to commence on 5 March 2025. -- 36 of 37 -- [2026] SASCA 55 The Court 35 3. The appellant is disqualified from holding or obtaining a driver’s licence for 12 years in respect of Count 1 and for 10 years in respect of Count 2. The periods of licence disqualification are to run concurrently and commence on the date of the appellant’s release from custody. -- 37 of 37 --