[2025] SADC 110

Prosecution: R Counsel: MR R WILLIAMS SC - Solicitor: DEPARTMENT OF PUBLIC PROSECUTIONS Defendant: ANN LOCK Counsel: MR J MARCUS - Solicitor: STANLEY & CO LAWYERS Hearing Date/s: 23/04/2024 to 29/04/2024, 10/12/2024 to 11/12/2024, 23/12/2024 File No/s: DCCRM-22-010006 B DISTRICT COURT OF SOUTH AUSTRALIA (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. R v LOCK Criminal Trial by Judge Alone [2025] SADC 110 Reasons for the Verdict of his Honour Judge Barklay 29 August 2025 CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM Accused charged with one count of causing death by dangerous driving (Count 1), one count of causing serious harm by dangerous driving (Count 2) and one count of causing harm by dangerous driving (Count 3). Verdicts: Guilty of Count 1, 2 and 3. Criminal Law Consolidation Act 1935 (SA) ss 19A; Road Traffic Act 1961 (SA) s 45; Juries Act 1927 (SA) s 7(1)(a); Evidence Act 1929 (SA) s 45A, referred to. R v Coventry (1938) 59 CLR 633; McBride v The Queen (1966) 115 CLR 44; Giorgianni v The Queen (1985) 156 CLR 473; Kroon v The Queen (1990) 55 SASR 476; Kamleh v The Queen (1990) 51 A Crim R 435; R v Coventry [1938] SASR 79; R v Palazoff (1986) 43 SASR 999; Clark v Ryan (1960) 103 CLR 486; Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; R v Bonython (1984) 38 SASR 45; R v Bjordal (2005) 93 SASR 237; Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34; R v Goode [2010] SADC 123; Tsalapatis v The King [2025] SASCA 27, considered. -- 1 of 41 -- -- 2 of 41 -- R v LOCK [2025] SADC 110 Introduction 1 The accused, Ann Lock, is charged with the offences of causing death by dangerous driving (Count 1), causing serious harm by dangerous driving (Count 2), and causing harm by dangerous driving (Count 3).1 2 On 8 April 2021, the accused drove her Subaru Forester in an easterly direction on Hindmarsh Tiers Road, into the intersection of Hindmarsh Tiers Road and Victor Harbor Road (the intersection) at between 66 and 71 km/h. In doing so, she failed to give way, as was required, to traffic on Victor Harbor Road. As she entered the intersection, she drove directly in front of a Ford Territory travelling north on Victor Harbor Road between 88 and 95 km/h, causing an unavoidable collision. 3 Crash data recovered from the Subaru Forester confirmed the accused did not engage in emergency braking until the last half a second before impact. The Ford Territory hit the right-hand side of the accused’s vehicle. Both vehicles spun and left the road. The accused’s vehicle hit a tree. In the back passenger seat of the accused’s vehicle was her sister, and in the front passenger seat, her husband. Her sister died because of injuries she suffered in the accident. Her husband suffered harm, namely, multiple fractured ribs. The driver of the Ford Territory suffered serious harm. 4 The accused pleaded not guilty to all charged offences, but guilty to two counts of aggravated driving without due care, and one count of driving without due care.2 The Director of Public Prosecutions (the prosecution) did not accept those pleas in satisfaction of the Information, and the trial proceeded. 5 The accused elected to be tried by judge alone.3 6 There is no dispute that the accused was required, but failed, to give way at the intersection. The issue is whether, in failing to do so, she was driving dangerously. 7 For reasons I will explain, I am satisfied the accused drove dangerously, as opposed to carelessly, and her dangerous driving was the substantial cause of death (Count 1), serious harm (Count 2), and harm (Count 3). In those circumstances, I find the accused guilty of Counts 1, 2, and 3. Charges 8 I set out the charges: 1 Criminal Law Consolidation Act 1935 (SA) ss 19A(1), 19A(3). 2 Road Traffic Act 1961 (SA) s 45. 3 Juries Act 1927 (SA) s 7(1)(a)-(b). -- 3 of 41 -- [2025] SADC 110 2 Statement of Charges Count 1: Offence details: Causing Death by Dangerous Driving. (Section 19A(1) of the Criminal Law Consolidation Act, 1935). Particulars Ann Lock on the 8th day of April 2021 at Hindmarsh Valley, drove a motor vehicle in a manner which was dangerous to any person and thereby caused the death of Coralie Stefanovic. Count 2: Offence details: Causing Serious Harm by Dangerous Driving. (Section 19A(3) of the Criminal Law Consolidation Act, 1935). Particulars Ann Lock on the 8th day of April 2021 at Hindmarsh Valley, drove a motor vehicle in a manner which was dangerous to any person and thereby caused serious harm to Sarah Pinnegar. Count 3: Offence details: Causing Harm by Dangerous Driving. (Section 19A(3) of the Criminal Law Consolidation Act, 1935). Particulars Ann Lock on the 8th day of April 2021 at Hindmarsh Valley, drove a motor vehicle in a manner which was dangerous to any person and thereby caused harm to Barry Lock. Elements 9 All elements of an offence must be established beyond a reasonable doubt before there can be a verdict of guilty. Section 19A of the Criminal Law Consolidation Act 1935 (SA) creates the offences before the Court. 10 Each offence comprises the following elements: (1) the accused drove a motor vehicle; (2) the accused drove the vehicle in a manner that was dangerous to any person; and -- 4 of 41 -- [2025] SADC 110 3 (3) that by driving in that dangerous manner, the accused either caused the death of (Count 1), or caused serious harm (Count 2), or harm (Count 3), to another person. 11 The defence concedes the accused’s driving amounts to driving without due care. The central issue is whether the accused was driving her vehicle in a manner that was dangerous to any person. 12 Whether a vehicle is driven in a manner dangerous to any person must be answered by reference to an objective standard, and irrespective of whether the accused intended to drive dangerously or appreciated that he or she was doing so.4 13 The relevant principles were set out in Kamleh v The Queen, where King CJ stated:5 The crime is committed by the act of driving in a manner which any reasonable person in the situation of the driver would recognise as dangerous in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public. Ordinary risks of the road include those arising from the sort of faulty driving and lack of care which must be expected, due to human frailty, from time to time, from the ordinary driver. The sort of driving which constitutes this crime is more serious than that. It is driving which a reasonable person in the situation of the driver would understand to be such as would give rise to a serious risk of injury to members of the public going beyond the ordinary risks of the road. Preliminary legal directions 14 The prosecution bears the onus of proving each element of each charge it has relied upon, beyond a reasonable doubt. The accused is at all times presumed innocent unless I, as the trier of fact, were to be satisfied beyond a reasonable doubt of guilt. A reasonable doubt would be one that, after my consideration of all the relevant evidence in the context of the charges I am considering, I am prepared to entertain. 15 The accused chose not to give evidence in her defence. She was not obliged to have done so. That was her right, and, as it was her right, I have not drawn any adverse inference against her. I also direct myself that the calling of witnesses by defence, including an expert witness, does not reverse the onus of proof. It remains the prosecution’s burden to prove their case beyond a reasonable doubt. View 16 I granted an application by the prosecution for a view of the scene to be conducted. The view took place on the second day of trial. I remind myself that a 4 R v Coventry (1938) 59 CLR 633, 637-639 (Latham CJ, Rich, Dixon and McTiernan JJ). See also McBride v The Queen (1966) 115 CLR 44, 55 (McTiernan J); Giorgianni v The Queen (1985) 156 CLR 473, 479 (Gibbs CJ), 490 (Mason J), 499 (Wilson, Deane, Dawson JJ); Kroon v The Queen (1990) 55 SASR 476, 477 (King CJ). 5 Kamleh v The Queen (1990) 51 A Crim R 435, 437 (King CJ). -- 5 of 41 -- [2025] SADC 110 4 view is not evidence but was conducted to assist me to understand the evidence that was led at trial. Prosecution evidence Agreed facts 17 The following evidence was agreed. 18 On Thursday 8 April 2021, the accused was driving a white Subaru Forester on Hindmarsh Tiers Road.6 Seated in the front passenger seat of the Subaru Forester was Mr Barry Kent Lock (Mr Lock), the accused’s husband, and seated in the rear passenger seat was Ms Coralie Stefanovic (Ms Stefanovic), the accused’s sister (the deceased).7 19 The Subaru Forester entered the northbound lane of Victor Harbor Road. The orange Ford Territory collided with the right-hand side of the Subaru Forester, the impact concentrated around the ‘B-pillar’ which separates the driver’s door from the rear passenger door. Seated in the Ford Territory at the time of the collision were Ms Sarah Pinnegar (Ms Pinnegar) who was driving, and her infant child seated in the rear.8 20 As a result of the collision, Ms Stefanovic died.9 21 Ms Pinnegar sustained serious harm, comprising multiple fractures to her lower right leg (tibia and fibula), with an intramedullary rod (internal fixation along the tibia) and distal locking screws being inserted during surgery. She required hospitalisation for eight to nine days, the use of a walking frame upon discharge, physiotherapy, and desensitisation therapy post-discharge. Her daughter sustained no injuries, except for seatbelt bruising.10 22 Mr Lock sustained harm, comprising multiple minimally displaced rib fractures.11 23 The accused held a full, unconditional and unrestricted driver’s licence. She had no medical condition that could have contributed to the collision. Ms Pinnegar held a P2 driver’s licence. Neither driver was under the influence of alcohol or drugs at the time of the collision. Neither vehicle had any mechanical faults that could have contributed to the collision.12 6 Exhibit P11, agreed facts 1 and 5. 7 Exhibit P11, agreed fact 5. 8 Exhibit P11, agreed fact 6. 9 Exhibit P11, agreed fact 7.1. 10 Exhibit P11, agreed facts 7.2 and 7.4. 11 Exhibit P11, agreed fact 7.3(a). 12 Exhibit P11, agreed facts 8-12. -- 6 of 41 -- [2025] SADC 110 5 Scene examination 24 Brevet Sergeant Kirsten Jane McLoughlin (Brevet Sergeant McLoughlin) is attached to the Major Crash Investigation Unit within South Australia Police. Brevet Sergeant McLoughlin attended the scene on 8 April 2021, at around 2:30 pm. Sergeant Brevet McLoughlin processed the scene, which included taking photographs and preparing scale plans. A selection of photographs taken by Brevet Sergeant McLoughlin was tendered along with two scale plans.13 Based on Brevet Sergeant McLoughlin’s evidence, most of which was not in dispute, I make the following findings. 25 The collision occurred on 8 April 2021, at around 12:00 pm at the intersection of Hindmarsh Tiers Road, Victor Harbor Road, and Virgin Road. The weather was fine, and the road was dry. 26 Victor Harbor Road runs in a north-south direction. Hindmarsh Tiers Road extends generally west from Victor Harbor Road. On the opposite side of Hindmarsh Tiers Road is Virgin Road, which extends generally east from Victor Harbor Road. The speed limit on Hindmarsh Tiers Road on the approach to Victor Harbor Road was 100 km/h. The speed limit on Victor Harbor Road was 100 km/h. Virgin Road is a rural no-through road, with a speed limit of 50 km/h. 27 At the time of the collision, vehicles travelling east on Hindmarsh Tiers Road were required to give way to traffic on Victor Harbor Road. Hindmarsh Tiers Road was a bitumen road with a single lane each way. The lanes were separated by two white continuous lines, which changed to a white painted median strip as one approached the intersection. 28 Travelling east on Hindmarsh Tiers Road towards Victor Harbor Road, the road is generally straight and lined by trees. The road then has a sweeping left- hand bend, which finishes around 100 metres from the intersection. 29 Before the left-hand bend, there were four signs on the northern verge of Hindmarsh Tiers Road that were clearly visible to travellers heading east on Hindmarsh Tiers Road towards Victor Harbor Road. They were as follows: (1) a red ‘reduce speed’ sign approximately 389.4 metres west of the intersection (reduce speed sign);14 (2) a yellow 75 km/h suggested speed sign with an arrow indicating a curve to the left, 234 meters west of the intersection (suggested 75 km/h speed sign);15 (3) a large green and white Victor Harbor Road advisory sign indicating Victor Harbor Road and the direction of travel to Victor Harbor and Mount 13 Exhibits P1, P1A and P2. 14 Exhibit P2, image 1. 15 Exhibit P2, image 2. -- 7 of 41 -- [2025] SADC 110 6 Compass, located between the suggested 75 km/h speed sign and the give way advisory sign (Victor Harbor Road advisory sign);16 and (4) a yellow give way advisory sign positioned 167 metres west of the intersection (give way advisory sign).17 30 After the left-hand bend, the signage at the intersection can be seen from 134.9 metres west of the intersection, as can the tops of vehicles travelling north and south on Victor Harbor Road.18 At that point, in terms of vertical alignment, Hindmarsh Tiers Road is slightly below Victor Harbor Road. The incline is such that the road surface of Victor Harbor Road cannot be seen until closer to the intersection when the gradient flattens out. After the left-hand bend, in the southwest corner of the intersection, a tree line running parallel to the northbound lane of Victor Harbor Road, impedes the view of a driver travelling in an easterly direction on Hindmarsh Tiers Road of vehicles in the northbound lane on Victor Harbor Road. At around 30 metres from the intersection, a driver on Hindmarsh Tiers Road has an unimpeded view of traffic on Victor Harbor Road driving north towards the intersection.19 31 The signage at the intersection (visible from 134.9 metres) comprised of the following: (1) a give way sign approximately 15.4 metres west of the intersection (give way sign). The give way sign was positioned approximately 5.8 metres to the left of the white line on the edge of the eastbound lane of Hindmarsh Tiers Road. The give way sign is facing west towards eastbound traffic on Hindmarsh Tiers Road; (2) two large green Victor Harbor Road signs (one on top of the other) indicating the direction of travel to Victor Harbor and Mount Compass. The signs are situated at the southeast corner of the intersection, facing west towards eastbound traffic on Hindmarsh Tiers Road; and (3) a give way sign at the southeast corner of the intersection on Virgin Road facing east towards traffic travelling on Virgin Road in the westbound lane towards Victor Harbor Road. Expert evidence - Sergeant Mark Fulcher 32 Sergeant Mark Fulcher (Sergeant Fulcher) is attached to the Major Crash Investigation Unit. He prepared a report dated 13 September 2021, in relation to his role as a technical examiner about the collision, which was tendered by 16 Exhibit P2, image 3. 17 Exhibit P2, image 3. 18 Exhibit P2, image 4. 19 Exhibit P1A places the line of sight just before the first chevron on the southern side of Hindmarsh Tiers Road. According to exhibit P5, the first chevron on the southern side commences just over 29.7 metres west of the intersection. -- 8 of 41 -- [2025] SADC 110 7 consent.20 Sergeant Fulcher’s qualifications to give expert evidence were not in dispute. 33 Apart from one matter relating to a concept known as the ‘see-through effect’, which I come to later in these reasons, Sergeant Fulcher’s evidence was not disputed. Based on his evidence, the following evidence may be accepted. 34 The approximate point of impact was in centre of the northbound lane on Victor Harbor Road. 35 The Subaru Forester had an event data recorder (EDR) within the airbag control module. When the airbags are deployed, the EDR records five seconds of pre-crash data in half second increments. The pre-crash data includes vehicle speed, whether the accelerator was depressed, whether the brakes were on or off, engine revolutions per minute, anti-lock braking activity (ABS), and steering input. In this case, the EDR recorded five seconds of pre-crash data before the collision, and before the impact with the tree. There was overlap between the records. 36 Based on the pre-crash data, Sergeant Fulcher gave the following evidence. 37 At five seconds, the Subaru Forester is 102.93 metres from impact travelling at a speed of 79 km/h. The accelerator was not depressed, nor was there any braking. The steering input was minus 20 degrees. 38 At four and a half seconds, the Subaru Forester is 92.03 metres from impact travelling at 78 km/h. There was no change to the accelerator, though the steering input decreased to minus 15 degrees. 39 At four seconds, the Subaru Forester is 81.27 metres from impact travelling at a speed of 77 km/h. The accelerator was depressed to 8 per cent and the steering input reduced to minus 7.5 degrees. There is an indication of a slight rise in the road, such that the accelerator would have had to be depressed to maintain speed. 40 At three and a half seconds, the Subaru Forester is 70.71 metres from impact travelling at 75 km/h. The accelerator was depressed slightly more at 9 per cent, and the steering input remained the same. 41 At three seconds, the Subaru Forester is 60.37 metres from impact travelling at 74 km/h. The accelerator was depressed to 14 per cent, and the steering input remained the same. 42 At two and a half seconds, the Subaru Forester is 50.1 metres from impact travelling at 74 km/h. The accelerator is no longer depressed and remained that way until the point of impact. The steering input slightly reduces from minus 7.5 20 Exhibit P3. -- 9 of 41 -- [2025] SADC 110 8 degrees to minus 5 degrees. This is consistent with the steering input being less as the road straightens. 43 At two seconds, the Subaru Forester is 39.83 metres from impact travelling at 74 km/h. 44 At one and a half seconds, the Subaru Forester is 29.7 metres from impact travelling at 72 km/h. The service brake remains off, and the steering input is reduced to 0 degrees. 45 At one second, the Subaru Forester is 19.7 metres from impact travelling at 72 km/h. The service brake is on for the first time. The level of depression is not recorded. The recording of the brake being on indicates the brake pedal was on enough to activate the circuit that illuminates the brake light. It does not indicate the severity of braking. 46 At half a second, the Subaru Forester is 9.44 metres from impact, and 7.44 metres from the give way line, travelling at 70 km/h. The steering input was 2.5 degrees, indicating a slight correction of the steering rather than an impending right turn. If the vehicle was performing a right-hand turn at the intersection, the steering input would have been ‘much greater’; at least 45 degrees. The service brake remained on. The steering input of 2.5 degrees shows the Subaru Forester’s path of travel was straight through the intersection. 47 At the point of impact with the Ford Territory, the Subaru Forester is recorded as travelling at 66 km/h. 48 Whilst the brake was first engaged one second prior, had that indicated emergency braking, a reduction of around 25 km/h per second would be expected. The speed loss of about 6 km/h in the final second indicated a gentle reduction in speed, and not emergency or heavy braking. 49 Sergeant Fulcher explained that there was no drastic speed reduction, as would be expected if there had been an intention to stop at the intersection. The EDR records show that the ABS came on somewhere in the half second prior to impact. 50 Overall, the pre-crash data indicates that the accused rounded the bend ahead of the intersection at 79 km/h. Over about two seconds, she reduced to a speed of 74 km/h, which was then maintained until one and a half seconds, or 29.7 metres, before impact. The accelerator remained on up to three seconds prior to impact. The brake is first engaged one second prior to impact. The ABS is activated somewhere in the half second prior to the point of impact. Speed of vehicles at point of impact 51 Sergeant Fulcher conducted some further calculations based on scientifically accepted methods and determined the best estimate as to the speed of the Subaru Forester at the moment of impact was between 66 and 71 km/h. -- 10 of 41 -- [2025] SADC 110 9 52 There was no EDR available from the Ford Territory. Sergeant Fulcher estimated the speed of the Ford Territory, based on scientifically accepted methods, was between 88 and 95 km/h. There was no evidence on the roadway of any emergency braking on the part of the Ford Territory. According to Sergeant Fulcher, by the time the Subaru Forester entered the intersection, it was approximately 0.11 of a second before impact. The driver of the Ford Territory had insufficient time to respond before impact. Stopping distances 53 Sergeant Fulcher said, assuming a speed of 74 km/h based on scientifically accepted methods, the Subaru Forester could have come to a stop somewhere between approximately 27 and 30 metres prior to impact, depending upon whether hard breaking or emergency braking was used. Based on that, the accused could have stopped before the give way sign had she braked somewhere between one and a half and two seconds prior to impact, depending upon whether she deployed hard or emergency braking. Perception response time 54 Sergeant Fulcher gave evidence about perception response times, which he explained is the time between when the driver perceives the hazard until the vehicle responds to whatever action the driver does, in this case, braking. Perception response times vary from individual to individual. The scientifically accepted method is estimating the average response time, which is up to 2.1 seconds, and then one standard deviation away from the norm is 2.8 seconds. 55 During cross-examination, Sergeant Fulcher said, assuming a 2.1 second perception response time, at a speed of 74 km/h, a person would travel approximately 43 metres before braking commenced. Therefore, adding the braking distance (between approximately 27 and 30 metres), to the perception response time distance, it may take somewhere between 70 and 73 metres, depending on hard or emergency braking, to stop before impact. Applying a 2.8 second perception response time, it would require between approximately 84 and 88 metres to stop before the intersection. 56 Importantly, Sergeant Fulcher explained that the perception response times are based around the time it takes people to respond to something that is unexpected. As in ‘a cross-path situation where a vehicle is coming across your path, or a pedestrian is coming across your path’. If there is an expectation of something ‘the perception response time goes way down’. See-through effect 57 During cross-examination, Sergeant Fulcher confirmed that he was familiar with the see-through effect. He agreed that it is a recognised concept within the discipline of crash reconstruction. He agreed that it is relevant to those who conduct road audits, and that it is taken into account by auditors when trying to avoid creating intersections that are likely susceptible to the see-through effect. -- 11 of 41 -- [2025] SADC 110 10 58 Sergeant Fulcher gave evidence that in a metropolitan area, a see-through effect may occur when there are two intersections with controls, such as traffic lights, close to each other in proximity (approximately a ‘couple hundred metres’). In those circumstances, a driver focuses on the further set of traffic lights, rather than those confronting the driver. In a rural area, the see-through effect may occur where there are multiple requirements on the driver within a quick succession of each other. The following evidence is relevant: A … So for instance, you might have an intersection where that is controlled by give- way or a stop sign and the other side of that intersection section might be a railway line where there is a railway crossing sign or a railway ahead sign or something like that. So the driver has multiple requirements and they may look through the intersection and see that sign and not see the give-way sign or not comprehend that the give-way sign is there. What the see-through effect isn’t is that you are driving along a road and there is an intersection and you see that your road continues on because it does, that is what an intersection is. It is not that you see that road continuing and you just miss the crossroads. There has to be multiple requirements on the driver within quick succession to each other. 59 Sergeant Fulcher stated that the phrase ‘multiple requirements’ refers mainly to signage. He agreed multiple requirements included requirements on the driver to perceive things around them on the road, take them into account, and drive accordingly. 60 Sergeant Fulcher was asked whether multiple requirements could include a situation where there was signage coming up, but also a ‘change in the road condition’. He responded ‘probably not’ based on what the see-through effect is; that is, about signage on the roads, rather than the road itself. 61 The following scenario was put to Sergeant Fulcher to consider: Q If you had in your mind from signage that you perceived that there was a T intersection coming up and as you were driving there was a crossroad and you thought in your mind that the T intersection was on the other side of that or further through the crossroad, under those circumstances could the see-through effect occur. A That’s probably outside my expertise, I - I don’t get into the mind of what drivers think. Q And that's the case even if, obviously, not speculating on what a particular driver thought but, for the sake of the hypothetical, assuming that the driver has that state of mind, or do you say that’s just outside what you’re comfortable speaking about. A I would say not, no. Q When you say not, as in not that it could occur or not that you think that that’s outside what you think your expertise extends - A I would say it would not occur that way to be a see-through effect. -- 12 of 41 -- [2025] SADC 110 11 62 When asked what qualifications or information he had based his comments upon, regarding the see-through effect, he stated he had researched and consulted reference material relating to the see-through effect. 63 During cross examination, Sergeant Fulcher agreed that he gave evidence in a previous trial that the see-through effect could occur on country roads, where there are no lights, but where there is an intersection, and a person is looking through the intersection and does not see the side roads. He went on to explain that when he gave that evidence, he did not know much about the see-through effect. However, he had since looked further into how it occurs. 64 It was put to Sergeant Fulcher that he could not say, one way or another, whether the see-through effect had an influence on the collision. He gave evidence that ‘well, you could never say that because you can’t get into the mind of the driver’. 65 In re-examination, he clarified that if there are signs in conflict with each other, there are ‘multiple requirements’. However, if there are multiple consistent signs, that should act as a warning to the driver that they must do something ahead. Defence evidence Barry Kent Lock 66 The defence called Mr Lock, the accused’s husband, to give evidence. 67 Mr Lock has been married to the accused for 50 years. He said that the accused is highly regarded by friends, family, and colleagues, as a person of integrity, faithfulness, truthfulness, and has a caring nature. 68 I accept, based on Mr Lock’s evidence, that the accused is a person of good character. I note that whilst good character evidence was led, the defence placed no reliance on the evidence during addresses. I have taken into account the accused’s good character and previous good driving record in her favour. However, it may be accepted that ‘good character evidence may carry more weight with respect to some crimes than others’,21 or because of the particular issues that arises for consideration. In a case such as this, where the issue is whether the driving was dangerous due to gross inattention, the accused’s good character has less relevance than it may have had if the issues in the trial were different. 8 April 2021 69 Mr Lock gave evidence regarding the lead-up to the collision, including the accused’s driving, and the collision itself. As is set out earlier in these reasons, Mr Lock was the front passenger in the accused’s vehicle at the time of the collision. What he could say about the circumstances of the collision was limited because of an eye condition he has, known as stargardt disease. The disease impacts his central 21 R v Palazoff (1986) 43 SASR 999, 111 (Cox J). -- 13 of 41 -- [2025] SADC 110 12 vision. He explained that his central vision is blurred, so he cannot see what is in front of him, however, he retains his peripheral vision. 70 He said when seated in the passenger seat of a vehicle, if he looks straight ahead, he cannot see vehicles immediately in front, but he can see vehicles on the side. 71 In relation to the accused’s driving on that day, Mr Lock described it as ‘very sensible’ and with ‘usual focus’. 72 On the day of the collision, the accused, her sister, and Mr Lock, travelled to Myponga before heading eastward on Hindmarsh Tiers Road. Their intended destination was Victor Harbor. Mr Lock gave evidence that they had driven on other occasions from Myponga to Victor Harbor, travelling on Hindmarsh Tiers Road, but had previously turned right prior to the Hindmarsh Tiers Road and Victor Harbor Road intersection. Therefore, the intersection was completely new to the accused. 73 About one minute prior to the collision, Mr Lock gave evidence that everything was settled in the car. They were not talking, and there was no loud music on. Mr Lock sensed that the accused would be turning right, as they had been driving on Hindmarsh Tiers Road for a while. Mr Lock felt the vehicle slow down, though it was still travelling straight, followed by the accused saying ‘we should have turned there’, and seconds after that, the collision occurred. What Mr Lock said the accused said moments before the collision is arguably part of the res gestae and can be relied upon for testimonial purposes. Not a lot turns on that, given the defence did not rely on this evidence in support of their case. Probably for good reason. As I will come to, the evidence adds very little in terms of determining the issues in this case. 74 During the drive from Myponga to the point of the collision, Mr Lock’s peripheral vision allowed him to see the accused in the driver’s seat. He said the accused had the Global Positioning System (GPS) on. He said that the GPS was situated on a screen high up on the dashboard within the vehicle, however, he was not able to say whether the accused’s mobile phone was connected to the GPS through Bluetooth, or whether the GPS was connected directly from the vehicle’s system. 75 During cross-examination, Mr Lock said the GPS was functioning through visual cues only; there was no narration or voiceover. 76 He said the accused was not using her mobile phone, nor was she distracted by it. Although she had sometimes used her mobile phone’s GPS function, on the day of the collision, she was using the vehicles GPS. 77 Mr Lock said that he was confident the accused was not glancing at her mobile phone or GPS function. He explained that, despite his vision impairment, he would have been able to see the accused turn her head to look at her mobile -- 14 of 41 -- [2025] SADC 110 13 phone through his peripheral vision. At the same time, he accepted it was possible he could have missed her glancing at her mobile phone. 78 During cross-examination, Mr Lock agreed that he had spoken with the accused about what had happened since the collision. He recalled the accused said that she could see a road straight on ahead and that there was a red vehicle on that road. She said she was not aware of the crossroad and ‘it just jumped on her and suddenly the vehicle was there’. She had a perception that she was driving straight on ahead and then suddenly there was the Ford Territory; it ‘all happened out of the blue’. 79 Mr Lock could not recall whether the accused ever said that she saw the Ford Territory in advance of the collision. He said generally her explanation was that it ‘came out of nowhere’. 80 What the accused had said to Mr Lock (according to Mr Lock), at some time after the collision, is hearsay. I have not relied on what the accused said, sometime after the collision, for the truth of the assertions contained in the statements. 81 The prosecution submitted that what Mr Lock said the accused had said to him was unreliable because of the trauma he suffered, or because of the risk of reconstruction. 82 Even if one accepts, she said ‘we should have turned there’ it only serves to underline her failure to observe the Ford Territory and the need to give way. To the extent the comment might reflect an awareness of the intersection, it is inconsistent with the objective evidence that she made no attempt to slow down in appreciation for the intersection. Had she been aware of Victor Harbor Road, one would expect her to have slowed significantly. 83 As to the other statements made after the collision, there is some force in the prosecution submission that the reliability of Mr Lock’s evidence may be affected by trauma, or because of the accused’s attempts, after the fact, to reconstruct or rationalise events. I accept Mr Lock was an honest witness. At the same time, the reliability of his evidence, for those reasons, may be doubted. However, even if the statements after the collision had some relevance as to the state of mind of the accused, the statements attributed to the accused, at best, reflect the accused’s lack of awareness at the intersection. 84 Overall, Mr Lock’s evidence has limited relevance to the facts of the issue. The defence did not mention Mr Lock’s evidence during their final address, other than to say I should not rely on Mr Lock’s evidence to find that the accused was looking at her GPS at the time of the collision. It was submitted to do so would amount to speculation. There was no reliance, by the prosecution or defence, on any statements said to have been made by the accused. I have not relied on the statements made by the accused to support the prosecution case. -- 15 of 41 -- [2025] SADC 110 14 85 Based on Mr Lock’s evidence, I am satisfied that the GPS had been turned on in the vehicle and was being used by Ms Lock to navigate herself to Victor Harbor. Given Mr Lock’s impaired vision, he appropriately conceded he could not exclude the accused was glancing at the GPS. Whilst Mr Lock considered he would have picked up on the accused’s head turning to look at the GPS or her mobile phone, there is an element of reconstruction about that. It also depends on what he was concentrating on and where his head was facing. Given his vision impairment, accepting he retains peripheral vision, I am unable to accept his evidence that the accused was not distracted by her GPS. I consider he could be honestly mistaken about that issue. At the same time, I am unable to make a positive finding as to what the accused was looking at or concentrating on as she approached the intersection. I am, however, satisfied that she could not have been concentrating on the road ahead of her. I express my reasons for finding so later in these reasons. Dash camera reconstruction videos 86 The defence tendered, by consent, dashboard camera videos taken by Charlie Aust (Mr Aust) on 23 April 2024, showing the approach to the intersection from: Hindmarsh Tiers Road driving east; Victor Harbor Road driving north; and on Virgin Road driving west.22 A still shot taken from the intersection was later tendered during Mr Zoran Bakovic’s (Mr Bakovic) evidence, which I will come to in a moment.23 87 There had been some cross-examination of Brevet Sergeant McLoughlin as to the height from which she took the scene photographs (seen in Exhibit P2). The suggestion that the photographs were taken while standing (at a height of approximately 155 centimetres, noting Brevet Sergeant McLoughlin’s height of 165 centimetres) did not represent the view the accused would have had, were resolved by the tender of the footage taken by Mr Aust. It was agreed the dashboard camera from which the recording was taken was positioned at a height of 125 centimetres from the ground, and 15 centimetres to the left of the centre line of the vehicle, under the driver’s rear-view mirror. 24 88 The videos provide good evidence from which to assess the approach to the intersection, the visibility of signage, and the intersection itself. Defence expert – Zoran Bakovic 89 The defence called Mr Bakovic as an expert in traffic engineering, road safety, and collision investigation and reconstruction. There was a blanket objection taken by the prosecution to the whole of Mr Bakovic’s evidence and all exhibits tendered during his evidence. I received Mr Bakovic’s evidence de bene esse. 22 Exhibit D16. 23 Exhibit D26. 24 Exhibit P11, agreed fact 14. -- 16 of 41 -- [2025] SADC 110 15 90 The objection was on the basis that Mr Bakovic either gave evidence upon which there was no specialised field of study, or did not connect his training to the opinions he gave; or I was in as good a position to determine various issues as Mr Bakovic; or his opinions assumed matters that were not established on the evidence, such that his evidence was of such limited weight I should exclude it. 91 The defence relied on Mr Bakovic’s evidence about the see-through effect (a matter upon which Sergeant Fulcher gave evidence) and its likely operation at the intersection and, more generally, his evidence to the effect that the intersection was dangerous. 92 An expert may only give evidence of matters that are not wholly within the knowledge of ordinary persons. An expert must bring specialised knowledge about which a layperson would be unable to form a correct judgement upon without assistance. If I am in as good a position to judge something as the expert, then the matter is not properly the subject of expert opinion.25 93 The principles governing the admissibility of expert opinion evidence were authoritatively explained by Heydon JA in Makita (Aust) Pty Ltd v Sprowles:26 In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. 94 In R v Bonython,27 King CJ explained the questions to be asked when considering the admissibility of expert opinion evidence in the following way: The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is 25 Clark v Ryan (1960) 103 CLR 486; R v Bonython (1984) 38 SASR 45. 26 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85] (Heydon JA). 27 R v Bonython (1984) 38 SASR 45. See also R v Bjordal (2005) 93 SASR 237. -- 17 of 41 -- [2025] SADC 110 16 whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court. 95 Bearing those principles in mind, for reasons that follow, I found most of Mr Bakovic’s evidence to be admissible. At times, Mr Bakovic purported to give evidence as to the state of mind of the accused as she approached the intersection or expressed opinions on the ultimate issue. I have excluded his evidence when he has done so. I will identify the evidence that I do not consider to be admissible as I discuss his evidence. Many of the arguments made in support of exclusion go to the weight of his evidence rather than admissibility. I will set out the key parts of his evidence. I will make findings as the issues arise in relation to the evidence I have admitted. In doing so, I indicate that I have had regard to the whole of the evidence and have not considered the evidence in isolation. Qualifications, training and experience 96 Mr Bakovic is currently the director/principal engineer at a traffic engineering centre based in Sydney. Mr Bakovic began working in this role in 2012. Prior to this and dating back to 1995, he had been employed in various roles in the fields of traffic engineering, road safety, and transport.28 He has been involved in approximately 1,000 road safety audits, 300 forensic collision investigations, and 20 black spot studies. 97 Mr Bakovic holds two Master of Engineering. The first was completed at Belgrade University in 1994, and the second was completed at the University of Canterbury in 2006. Mr Bakovic said his studies at the University of Canterbury were most relevant to the opinions he gave during the trial as it dealt with subjects associated with accident reduction, prevention, and risk assessment. 98 He said risk assessment and accident reduction involve looking for deficiencies in a road that could cause a hazard and thereafter considering what measures can be put in place to reduce the risk. At the University of Canterbury, he studied about understanding the cause of collisions, what was the predominant type of collision at a black spot, how to identify the problem and the likelihood of that problem causing the collision and, once identified, what measures could be put in place to prevent or reduce that type of collision. 99 Apart from university studies, Mr Bakovic gave evidence that as part of his work as a road safety auditor, he has been called upon to assess and weigh those types of issues ‘a thousand times so far’. For example, he said that he is an exclusive auditor ‘on some of the most capital infrastructural projects in New South Wales, like New Castle bypass $600,000,000, like M45 two billion dollars, like Sydney Harbour Bridge in 2018, out of everyone else, my company and me, we were exclusive auditors, and the list is going on and on’. 28 Exhibit D19, pg. 6. -- 18 of 41 -- [2025] SADC 110 17 100 He said a ‘black spot study’ means there have been approximately five or more collisions, where an injury occurred, at a certain site in the last five years. In the event there is a commonality between the collisions (or there is thought to be), then the site may be selected for a black spot study. He said he will then analyse the site and report on it to Austroads. He said Austroads produce manuals according to which roads are built and produce manuals based on crash reduction studies. Traffic psychology – the ‘human factor’ 101 Mr Bakovic said, while at Belgrade University, amongst other things, he studied traffic psychology. He explained that traffic psychology was ‘human factors in … traffic situations’. He said ‘the main thing is that we don’t see the world in our eye, we see the world in our brain and we use the eye as a tool that sends information to the brain’. 102 He said that ‘in the field of human factors and human psychology in [a] traffic environment [he] completed no less than 10 trainings specifically on that and as part of other trainings’. 103 He also completed a five-day training course run by Professor Dr Jeffrey Muttart (Dr Muttart) in Melbourne in 2017, as well as eight online training courses with Dr Muttart (the relevance of those courses was not explained). Mr Bakovic explained that Dr Muttart is a maths professor and is regarded as one of the leading experts in the United States ‘in the field of the human factors’. He agreed, in examination in chief, that Dr Muttart is an internationally regarded expert in road traffic analysis. Drawing on Dr Muttart and ‘from the government of New South Wales’ (there was no further detail given about that), he said that the human brain is capable of processing four different tasks at a time. If there are more than four tasks, the brain will need to offload something. 104 As part of his master’s degree project (at Canterbury), he said he wrote a book (published in 2007) titled ‘Pedestrian Crossing Behaviour’ or ‘Pedestrian Behaviour Road-Crossing Style’ which he pointed out was ‘available on Amazon.com’. He said it was relevant to mention the book because ‘I read a lot during those two years, a lot of material in the human factors and the human psychology in the environment’. 105 Mr Bakovic said he studied several courses relating to our ability to perceive distance. He said that humans as a species are not capable of doing a quantitative assessment of speed, but that we are very good at judging the gap. He said according to Dr Muttart and some other authors (not named), our ability to judge the gap came from ‘evolution of an aspect of our species because for us, evolution advantage is not to chase an antelope and to catch an antelope. We are ambush predators, we wait in ambush, and if we jump from ambush too soon, the antelope will go, animal will go. If we actually jump too late, we go hungry because we are not going to catch them’. The notion that humans are good at judging the gap became relevant to evidence that Mr Bakovic gave about previous collisions that -- 19 of 41 -- [2025] SADC 110 18 occurred at the intersection and his opinion that the accidents were unlikely to have been due to a person misjudging the gap, but rather due to the driver failing to appreciate the intersection or the need to stop at it. I will come to that evidence later in these reasons. 106 I am satisfied that there is a specialised field of training around psychological factors that affect driver behaviour and that Mr Bakovic demonstrated sufficient training to be able to proffer an expert opinion on that subject. At the same time, there was limited evidence on the extent of the studies, or the reasoning process that underpinned them, and Mr Bakovic at times simply stated what someone else had said, which limits the weight to attribute to the evidence as ‘bare references to particular propositions carry no weight unless their basis is explained’.29 Appropriate signage in the lead up to the intersection 107 Mr Bakovic said he started his analysis by considering the signage a few hundred metres back from the intersection to assess ‘what is more likely than not, driver behaviour’ on the approach to the intersection. He wanted to assess whether the accused ‘saw the signs, more likely than not’. 108 According to Mr Bakovic, the suggested 75 km/h speed sign, the Victor Harbor advisory sign, and the give way advisory sign, were appropriately placed and clearly visible. In Mr Bakovic’s opinion, the signs in advance of the intersection adequately warned a motorist of the intersection ahead and of the need to give way at it. 109 Mr Bakovic expressed the opinion that the accused had seen the signs ahead of the intersection because she slowed for the bend in the road. He said the suggested 75 km/h speed sign indicated the curve ahead was too great to maintain the 100 km/h speed limit for that stretch of road. Had the accused maintained that speed, it was ‘plausible’ that she would have lost control. Mr Bakovic said there was no evidence that she had lost control around the left-hand bend, which meant that ‘more likely than not she was not in trouble’, therefore ‘she was compliant and very well aware of those signs’. He said that ‘all the way before the intersection, the driver, in my opinion, was aware about the signs’. 110 It is worth noting that at this point in Mr Bakovic’s evidence, he is purporting to give an opinion about what the accused saw and why she slowed. 111 Although a little later, despite giving the opinion she was ‘very well aware of those signs’, he said he was not saying what she saw because he ‘wasn’t behind the wheel … What she saw is for her to tell, I don’t know. But there is no evidence that she didn’t comply with those signage, which suggest that more likely than not she saw the signage’. 29 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [90] (Heydon JA). -- 20 of 41 -- [2025] SADC 110 19 112 Again, Mr Bakovic purported to give an opinion as to what the accused ‘more likely than not she saw’. As will be seen, this was a recurrent theme throughout Mr Bakovic’s evidence. 113 Mr Bakovic could not give an opinion about what the accused saw or why she slowed her vehicle. I exclude his evidence to the extent that it purports to give an opinion about her state of mind. No recognition – no response 114 According to Mr Bakovic, although the expectation of an intersection after warning signs about give way signs was ‘relatively high’, he said a driver will only respond to the intersection, and break for it, if they recognise that they are approaching an intersection. 115 Although the intersection was plainly in front of the accused, if the accused failed to appreciate the nature of the intersection, and the need for her to give way at it, she would not respond to the intersection. Mr Bakovic said ‘that’s scientific fact, so you cannot see something prior to recognise [sic] something. And therefore, you cannot react to something unless you’re aware of that something exist[s]. In this case, in my opinion, this intersection’. 116 It may be that his evidence, ‘in my opinion, this intersection’, was an oblique opinion that the accused did not recognise the intersection. Although it may be a reasonable conclusion given the objective evidence, Mr Bakovic’s opinion about the accused’s state of mind is inadmissible, and I exclude it. 117 As to the more general proposition that a person cannot react to something they do not see or recognise, Mr Bakovic gave various examples to illustrate the point. It is not necessary to repeat them. I accept that if a person does not recognise or is not aware of something, they will not react to it. In many ways, that is common sense. On one view, expert opinion is hardly required to make that point. Indeed, defence counsel in his final address queried whether the evidence ‘is truly expert evidence or whether this is merely an articulation of common sense’. Despite there being a reasonable argument, the evidence says no more than what any layperson would well understand. I am not inclined to exclude the evidence on that basis. The concept that a person may overlook something that is in plain sight is a concept about which there has been some study done within the accident reconstruction field. I accept that the concept had some relevance in this case. I have taken into account Mr Bakovic’s evidence on this topic when considering the issues in the case. Recommendations to improve the intersection 118 Mr Bakovic gave some general evidence as to improvements that could or should be made at the intersection to make it safer. By way of summary, he said the give way sign at the intersection should be bigger, situated closer to Hindmarsh Tiers Road in the view of the oncoming traffic to the intersection, and there should -- 21 of 41 -- [2025] SADC 110 20 be two of them. Mr Bakovic gave evidence that the give way sign did not meet Australian standards (it was not as close as practicable to the location where the vehicle needs to stop), and the line markings were inadequate. 119 He also said that a crossroad sign could be placed ahead of the intersection, but the main recommendation for improvement was the give way signs at the intersection. 120 It seems uncontroversial that there is a specialised area of study and experience about road sign placement. Given Mr Bakovic has two Master of Engineering in road design and safety, together with his road auditing experience both at university level and through his work, I am satisfied he is qualified to give an opinion about the correct placement of road signs, according to Australian standards, at an intersection. There was no specific submission made by the prosecution that Mr Bakovic was not qualified to give evidence of that nature or that there was not a specialised field of study in that area. Rather, the objection to this evidence was on the basis of relevance. 121 The prosecution submitted that it may be accepted that many intersections could be improved. However, the fact that the intersection could be made safer is not relevant to the facts in issue. It was submitted that if there are dangers associated with an intersection or stretch of road, it is incumbent on a person to drive to those conditions. There is force in that submission. However, to the extent that this evidence is loosely relevant to Mr Bakovic’s evidence about the see- through effect, by a fine margin, the evidence has some relevance, and I admit it. 122 It remains to be considered the weight to be attached to his opinions about improving signage at the intersection. See-through effect at the intersection 123 Mr Bakovic said that the main issue with the intersection was what he described as ‘see-through vision’. He said that ‘see-through vision’ or ‘see-through effect’ occurs when a driver’s attention is drawn to a feature beyond the intersection such that ‘the intersection itself is not clearly recognisable’. For reasons he developed, and which I will come to, Mr Bakovic’s opinion was that the intersection was prone to creating a see-through effect. 124 The prosecution submitted that, if there was such a thing as the see-through effect,30 that was a matter about which I was in as good a position as Mr Bakovic to assess, perhaps better, given I had attended the scene, and Mr Bakovic had not. It was submitted I should exclude his evidence on that basis. I do not accept the prosecution submission on this topic. 125 First, I accept that the concept of the see-through effect is a topic about which there has been specialised study and training. I note Sergeant Fulcher’s evidence 30 There was some doubt expressed by the prosecution whether there was such a thing. -- 22 of 41 -- [2025] SADC 110 21 seemed to recognise as much. Secondly, Mr Bakovic did demonstrate some training in that area, such that he was able to give an expert opinion about the topic. To the extent that Mr Bakovic’s opinions relate to features of the intersection that he considered may give rise to the see-through effect or may be confusing from an objective point of view, based on his training and experience, in my view, his evidence is admissible. 126 At the same time, I do consider that I am in as good a position as Mr Bakovic to form an opinion about what can be seen at the intersection which places me, as the trier of fact, in a good position to weigh Mr Bakovic’s opinions about the see- through effect. Consistent with principle, I am not bound to accept the opinion of an expert. As I will explain, there are good reasons not to in this case. 127 Before coming to the detail of Mr Bakovic’s evidence about the see-through effect, it is worth noting Mr Bakovic gave evidence that when he considered the intersection, he did so based on an assumption that the accused was driving safely. He said he assumed ‘reasonable safe driving behaviour’ because the accused complied with the suggested 75 km/h speed sign, slowed after the give way advisory sign, and she was not under the influence of alcohol or drugs. To assume reasonably safe driving behaviour, as Mr Bakovic did, was to assume the ultimate issue about the nature of the driving prior to the collision. For reasons I will come to, after considering the whole of the evidence, I do not accept that the accused was driving safely. 128 I set out Mr Bakovic’s evidence as to the possibility of the see-through effect applying to the intersection: A As you can see, for example here, in image 006 [Exhibit P2] let’s say. In this image 006 we see because of unfavourable vertical alignment of this intersection, horizontal alignment, we see the minor road beyond the intersection, but you cannot ever appreciate the presence of the main road from this particular point of view. So, what does it mean, see-through; you just see there and you are not even aware, and your focus on the feature, of the road feature, beyond intersection. So, the instinct to be focused at intersection or intersection to be more prominent to grab a driver’s attention, other features beyond intersection are more prominent than the intersection. And that in itself is well known. 129 As can be seen, Mr Bakovic highlighted the unfavourable vertical alignment of the intersection, the inability on the approach to Victor Harbor Road to be able to see the road surface, and Virgin Road beyond the intersection being the more prominent feature on the approach to the intersection. He went on to incorporate other features of the intersection into his opinion. Give way sign - substandard and misleading? 130 Mr Bakovic said the give way sign at the intersection for vehicles travelling on Hindmarsh Tiers Road was unfavourably aligned to the left (beyond the barriers on the left-hand side of Hindmarsh Tiers Road) for vehicles travelling east on Hindmarsh Tiers Road towards the intersection. Earlier in these reasons I set out -- 23 of 41 -- [2025] SADC 110 22 Brevet Sergeant McLoughlin’s evidence that the give way sign was situated 5.8 metres to the left of the white line on the left side of Hindmarsh Tiers Road for the traffic travelling east. 131 Mr Bakovic gave evidence that although there was no obstruction of the sight line between the approaching driver and the give way sign at the intersection, ‘being in the plain view [is] not the same thing as being recognised’. 132 Mr Bakovic gave evidence that in order to stop at the intersection, factoring in the perception response time and the speed the vehicle was travelling, a driver would need to see the intersection and appreciate the need to give way at it at least 72 to 88 metres before the intersection. Mr Bakovic gave evidence that based on the police photographs and the footage taken by Mr Aust, in his opinion, the give way sign was not visible at 50 metres. Later in his evidence, he said the give way line was not visible at 50 metres. 133 First, I accept that in order to stop at the intersection, a driver would need to appreciate they were approaching an intersection. I accept that the give way line on Hindmarsh Tiers Road cannot be seen 50 metres west of the intersection. However, the fact that the give way line cannot be seen overlooks the various other features that indicate a driver is approaching an intersection. I reject Mr Bakovic’s evidence that the give way sign is not visible at 50 metres. At 50 metres, the give way sign could not be more obvious. I prefer Brevet Sergeant McLoughlin’s evidence that the give way sign was visible at around 135 metres. That accords with the photographs and video evidence of the scene. 134 Secondly, the distance of 72 to 88 metres to stop before the intersection relies on the intersection being an unexpected event. The distances to stop incorporate scientifically tested and accepted perception response times31 of between 2.1 to 2.8 seconds. The perception response times are based on a path intrusion, which is an intrusion by a vehicle or pedestrian that was moving in a different direction than the subject driver, but then unexpectedly moving into the path of the vehicle.32 Mr Bakovic’s evidence on the stopping distances, which incorporate perception response time does not bear scrutiny. He said the expectation about the intersection should have been ‘relatively high’ (because of the advisory signs), but still treated the intersection like an unexpected event because ‘you are not going to stop every 20 metres. You will stop only when you see the intersection, and in order to see the intersection you need to recognise [it]’. 135 For reasons I will explain, in my view, the intersection was not an unexpected event; it did not come into the path of the vehicle; the intersection was in view and 31 ‘Refers to the time taken between a driver perceiving an immediate hazard that requires and emergency response and the vehicle system[s] responding to the driver’s reaction’ (Exhibit P3, Fulcher reconstruction report, pg. 87). 32 Exhibit P3, Fulcher reconstruction report, p87. -- 24 of 41 -- [2025] SADC 110 23 recognisable for about 135 metres; and well before 135 metres, the advisory signs warned of the upcoming intersection. 136 Mr Bakovic said that because a driver could not see the give way line on Hindmarsh Tiers Road, the chevron markings on Hindmarsh Tiers Road may be interpreted by a driver to relate to a stop line on Victor Harbor Road. That may, in turn, have led a driver to consider that they were on the main road and had right of way. 137 Mr Bakovic said having regard to images 5 or 6 in Exhibit P2, it is plausible that the give way sign looks like ‘it’s addressing or facing drivers on some side road and not on this road. This is my impression’. It may be doubtful as to whether Mr Bakovic’s opinion regarding the give way sign and what it may or may not indicate is based on any particular expertise. If it was, there was very little evidence led to demonstrate how his training and/or expertise allowed him to give that opinion, as opposed to his evidence being little more than his ‘impression’ about an image that I am in as good a position as Mr Bakovic to form an opinion about. 138 I bear in mind that it is essential for an expert to furnish the trier of fact with information or the criteria that allows the evaluation of the opinion to be expressed. Bare statements from an expert without more carry ‘little weight, for it cannot be tested … nor independently appraised’.33 139 Despite giving evidence that the give way sign at the intersection may have been interpreted as relating to Victor Harbor Road, later in his evidence, Mr Bakovic said that the give way sign did not give conflicting information to a driver on Hindmarsh Tiers Road approaching the intersection. I set out his evidence on that topic. Q The give-way sign in this case you consider is presenting competing information, conflicting information to a driver approaching the intersection on Hindmarsh Tiers Road. A Never said that, it never crossed my mind, I never said that. I just said that this give- way sign was in the view, field of view of the driver and because of other competing informations – Q What other competing information is what I’m asking. A Okay, see-through effect, the fact that you don’t see the main road, the fact that actually the marking seems like a stop sign on the side road, the fact that it was allegedly a red car at the sign, that’s four different things comparing with the existence of the sign, which was in very weird position and you don’t know is it applying for that road or this road and you actually have, you know, just clearly seen the directional signage. Which means we have four competing information comparing with one-and-a-half information in favour of or just being aware of the presence of the intersection. So the sign itself is not competing with anything, but 33 Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34, 39-40 (Lord President Cooper); Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [60] (Heydon JA). -- 25 of 41 -- [2025] SADC 110 24 there are other features at that particular intersection I am talking about, this, the intersection, that in my opinion, and I mention those features now, that supply competing information that could cause the problem to this driver. I don’t know was this the case, I’m just telling to the court based on this evidence that’s plausible and that’s all what I’m saying. (emphasis added) 140 As to what may have caused the see-through effect at the intersection, Mr Bakovic summarised it this way: A … There is a multiply factors here that actually create the problem and this is for example, clearly visible minor road continuing after the intersection, combined with multiple invisible main road, combined with not visible give way sign, combined with visible - placing the view give way sign with unfavourable chevron markings, you know, that actually looks like a stop sign and you have in that mix put the red car and that’s a recipe for disaster, you know, and the recipe, the driver could make mistake and be confused. (emphasis added) Previous collisions at the intersection – relevance to Mr Bakovic’s opinion – relevance more generally? 141 One other matter that Mr Bakovic considered relevant to the topic of the see- though effect was information held by The Department for Infrastructure and Transport (The Department) concerning previous collisions at the intersection. 142 Mr Bakovic gave evidence that when he first received the material about the case, he said, ‘this is a see-through vision’. He said because that was his opinion, he said ‘in order to confirm, you know just to give me more, … just information’. He then instructed the solicitors to subpoena The Department for ‘data for that particular intersection. Because the more information we have the more narrow field of cause for particular intersection is [sic]. And I see a see-through vision’. 143 The defence tendered an index titled ‘Bakovic Review Material’ which listed the documents that Mr Bakovic had regard to for the purposes of giving his evidence (Exhibit D20). The ‘Bakovic Review Material’ index references the following: (1) a ‘Project Proposal Report for Fleurieu Connections Delivery Phase’, dated March 2022, (item 35 – tendered as part of Exhibit D16) (Project Proposal Report); (2) a ‘Victor Harbor Road Upgrade Planning Investigation Report’, dated 1 March 2023, prepared for The Department (item 36 – not tendered); (3) a ‘Victor Harbor Road Safety Improvements Report’ (with appendixes) dated 11 March 2023, prepared for The Department (item 37 – not tendered); and -- 26 of 41 -- [2025] SADC 110 25 (4) a ‘Minutes forming Enclosure for Executive Director of Transport Strategy and Planning’, dated 21 July 2023, prepared for The Department (item 38 – tendered as Exhibit D15). 144 Mr Bakovic gave evidence that the crash records held by The Department indicate that ‘in [the] last seven years without this collision seven identical crossing turning collisions occurred’. In examination in chief, Mr Bakovic did not identify beyond the general reference to ‘crash records’ held by The Department what document(s) he relied on to give the opinion he did. 145 During cross-examination, he confirmed that his opinion that there were seven identical crashes was obtained from the Project Proposal Report. He confirmed that the report detailed that there were seven right-angle collisions excluding this matter before the Court, and of the seven collisions, five resulted in a casualty and two resulted in property damage. Notwithstanding the agreement that there were seven right-angle collisions, whilst not much turns on the inconsistency, the Project Proposal Report only refers to five right-angle casualty crashes between 2016, and 2020. The relevant part of that report is on page 12, which reads: During the five-year period from 2016 to 2020, at the Victor Harbor Road/Hindmarsh Tiers Road T-junction, there were five reported casualty crashes, resulted in two serious injuries and seven minor injuries. One intersection related fatal crash occurred in 2021. Casualty crash rate is higher than black spot rate. 146 The reference to righthand collisions comes from Appendix A of the Project Proposal Report, which describes the ‘problem description’ of the intersection as follows: • Sight lines to the south of the intersection are poor for traffic entering from Hindmarsh Tiers and Virgin Road, due to poor vertical geometry of the Victor Harbor Road northbound carriageway obscuring approaching vehicles o No right turn lanes to protect turning vehicles whilst waiting to turn into side roads o 5 casualty crashes 2016-2020 (all right angle) o Resulting in 2 serious injuries and 7 minor injuries o Casualty crash rate is higher than black spot rate o Notably, a right angle crash in 2021 resulted in a fatality (footnote omitted) 147 It was put to Mr Bakovic that ‘the same project documents’ cite one of the factors in the five casualty crashes was a failure to judge the gap in the traffic stream on the main road. He agreed that the project documents contained that information but did not accept that those collisions occurred in that way. He said -- 27 of 41 -- [2025] SADC 110 26 The Department’s report was prepared by people who work in traffic engineering who were not as experienced as he was. He accepted that The Department’s data comes from police reports, but he did not consider that information provided reliable data about how the crashes occurred. In his opinion, in 50 per cent of cases, the police reports about the cause of a collision are ‘not fully true’. He did not think the previous crashes involved a driver failing to judge the gap in oncoming traffic. 148 The effect of his evidence was that because humans are ‘very good’ at judging the gap, it was implausible that there could be as many as eight people involved in collisions in five years for that reason. He went on to say that one to two collisions on account of failing to appreciate the gap within a five-year period was plausible, but seven was not plausible. 149 Mr Bakovic gave evidence that although the number of casualty crashes was seven, it is possible that there were between 20 and 60 other occasions where vehicles failed to stop at the intersection, or there was a near miss, which were not reported. That conclusion was based on a textbook he had considered during his master’s degree at the University of Canterbury, which suggested that where there are collisions involving harm at a particular location, there are usually other unreported near misses. 150 Mr Bakovic gave evidence that, according to The Department, there had been ‘five complaints per year … receive[d] from the public, nearby residents, about [the] intersection’. The documents he relied on to give that evidence were not tendered or identified by the witness. 151 Mr Bakovic said he assumed that people complained about the intersection because they ‘experience[d] something bad about that intersection’. Mr Bakovic said the complaints made by members of the public about the intersection supported the research he had cited from the textbook he had obtained during his master’s degree. There was no further explanation as to the basis for the opinion in the textbook he cited. Whilst it is possible for an expert to adopt a statement made in other academic studies as part of that witness’s opinion, however, if the basis for the opinion is not explained, then little weight can be placed on it.34 152 The reported crash history at the intersection (as well as the near misses and complaints made by members of the public) were relied upon by Mr Bakovic as evidence that supported his conclusion that the intersection was the possible cause of the collision. It supported his conclusions about the see-through effect and the various deficiencies he identified with the intersection. 153 The evidence could only support those conclusions if one assumes that the reported crash data involved collisions in identical (or substantially similar) circumstances. Mr Bakovic conceded as much. 34 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [90] (Heydon JA) -- 28 of 41 -- [2025] SADC 110 27 154 Mr Bakovic’s conclusion, based on The Department documents identified by him, that the previous collisions occurred in identical circumstances was, in my view, an exercise of pure speculation. His basis for excluding information about the circumstances of the previous collisions, which suggest the collisions were not identical, beggared belief. His reliance on near misses at the intersection, or on reports from members of the public about incidents at the intersection, which he must have assumed to be near misses in identical circumstances for it to have any relevance, was particularly unconvincing and lacked any credibility. 155 I am not satisfied The Department documents allow for a finding that there were seven collisions in identical circumstances. The factual foundation for the opinion is not established on the evidence. 156 To summarise the position, Mr Bakovic’s opinion that the see-through effect was operative at the intersection, or that the intersection was otherwise dangerous, is based on essentially five criteria: (1) from Hindmarsh Tiers Road, Virgin Road could be seen continuing after the intersection; (2) the ‘main road’ (Victor Harbor Road) was ‘invisible’ to drivers on Hindmarsh Tiers Road approaching Victor Harbor Road; (3) the give way sign was not visible, or it looked like it was a stop sign for traffic on Victor Harbor Road; (4) there was a red vehicle on Virgin Road; and (5) there were previous identical collisions at the intersection. 157 The acceptance of his opinion, in part, hinges on my findings of fact about the intersection and whether I accept Mr Bakovic’s evidence as to what certain features may or may not have been present at the intersection. 158 I turn to consider those issues. 159 First, I accept that Virgin Road can be seen on the other side of the intersection. However, I do not accept that a driver, who was paying attention, would be drawn to Virgin Road such that other aspects of the intersection may not be recognised. In saying that, I have not overlooked that Mr Bakovic’s evidence took account of the totality of the features he highlighted in his evidence. I make clear that I have considered the combined force of the matters identified by Mr Bakovic as being relevant to this issue. 160 Secondly, as to whether Victor Harbor Road can be seen on the approach to the intersection, I agree that up until shortly before the intersection, the bitumen of Victor Harbor Road cannot be seen. However, to say the road is invisible overlooks the various other features that signal Victor Harbor Road to a driver on Hindmarsh -- 29 of 41 -- [2025] SADC 110 28 Tiers Road, namely, the large Victor Harbor Road sign at the intersection; the give way signs on Hindmarsh Tiers Road and Virgin Road; and the bright white chevron markings leading up to the intersection. I do not accept Victor Harbor Road was invisible. To the contrary, for a driver who was paying attention, it was obvious. It cannot be overlooked that the advisory warning signs on Hindmarsh Tiers Road about an upcoming intersection make a driver aware before the left- hand bend about the intersection. The intersection is not something that rises up out of nowhere, with no warning; a driver is not blind-sided by the intersection. They are warned in good time, about it. 161 Thirdly, as to the give way sign, I do not accept Mr Bakovic’s categorisation of it as ‘not visible’ or that it looked like a stop sign for Victor Harbor Road. Having considered the evidence, including the various photographs and the video taken by Mr Aust, I am satisfied that as a driver approached the intersection from Hindmarsh Tiers Road, the give way sign was in plain sight and clearly faced the driver (as opposed to anyone else) approaching the intersection. Mr Bakovic’s evidence that the chevron markers might create the illusion that the give way sign, which obviously applied to drivers approaching the intersection from Hindmarsh Tiers Road, might be taken to be a stop sign for Victor Harbor Road, was incomprehensible. When one looks at the photographs and the video of the approach to the give way sign, Mr Bakovic’s evidence cannot be accepted. I reject Mr Bakovic’s evidence on that topic. 162 Fourthly, there is no evidence that there was a red vehicle on Virgin Road. Mr Bakovic said he had been advised that there was a red vehicle on Virgin Road at the time of the collision, which explains why he took that into account when forming his opinion. According to Mr Bakovic, the accused may have been drawn to the red vehicle beyond the intersection. Because of the colour of that vehicle and, according to Mr Bakovic, the tendency of humans to be drawn to the colour red, the accused’s attention may have been drawn to the red vehicle, and in so doing, the accused failed to appreciate she was approaching an intersection. Mr Bakovic gave evidence about research that had been done in relation to the colour red drawing a person’s attention to it. The defence tendered a diagram produced by Mr Bakovic which comprised a number of green dots and a single red dot, which was said to illustrate his point.35 It was suggested during cross-examination that the diagram’s purpose was to highlight a tendency to focus on contrast, as opposed to illustrating the allure of the colour red. Mr Bakovic denied that that was the case. That was despite the article from which the diagram came from mentioning nothing about the colour red. 163 In this case, there is no evidence upon which I can find there was a red vehicle on Virgin Road at the time of the collision. Mr Lock’s evidence that the accused mentioned a red vehicle on Virgin Road sometime after the collision cannot be 35 Exhibit D23. -- 30 of 41 -- [2025] SADC 110 29 relied on to prove that fact. The defence conceded as much. It follows that Mr Bakovic’s assumption about the red vehicle was not established on the evidence. 164 Mr Bakovic’s assumption that there was a red vehicle on Virgin Road was an important feature in the context of the opinion he gave about the see-through effect at the intersection. 165 Fifthly, as I have already indicated, I reject Mr Bakovic’s conclusions as to the circumstances of the previous collisions at the intersection. In coming to that conclusion, I have considered other evidence that was tendered, but not shown to Mr Bakovic, about previous collisions at the intersection. For reasons I explain later, I exclude as a reasonable possibility that the evidence establishes that there were any identical collisions at the intersection. 166 As can be seen, the important assumptions upon which Mr Bakovic based his opinions, or his assessment about features of the intersection, are not established on the evidence. 167 Fundamentally, I do not accept that the intersection was misleading or that the signage was such that it produced a multiplicity of inconsistent messages to a driver approaching the intersection. 168 In response to a question put by the prosecutor that Mr Bakovic was essentially saying the intersection was to blame, Mr Bakovic responded, ‘sort of, yes’. The answer was the subject of specific objection. 169 Ultimately, what caused the collision is a matter for me. That is the contest at trial. To the extent that Mr Bakovic’s evidence purported to express an opinion on the ultimate issue, or otherwise purported to express an opinion as to what the accused saw, or why she entered the intersection in the way she did, I exclude his evidence. To be clear, I exclude Mr Bakovic’s evidence to the effect that: (1) it was more likely than not the accused saw the signs ahead of the intersection and slowed because of them; (2) because of the deficiencies in the intersection, it is ‘more likely than not, or better said, it is plausible based on the evidence that [the accused] actually misinterpreted the intersection as such’; (3) that it was plausible that the see-through effect played a role in the accused’s driving; and (4) that the intersection caused the collision. 170 If I am wrong, and his opinions on those topics are admissible, I indicate that had I taken them into account, it would not have altered the conclusions I ultimately reached about the accused’s driving. First, what the accused did or did not see or appreciate is a matter of speculation on Mr Bakovic’s part. If admissible, -- 31 of 41 -- [2025] SADC 110 30 I would have given it little to no weight. Secondly, for reasons I have articulated, I do not accept the see-through effect was a significant feature of the intersection. Thirdly, allied to the second, I do not consider the intersection was the cause of the accident. As I explain later, it was the accused’s gross inattention that was the substantial cause of the accident. Fourthly, the question is what a driver in her position, if paying reasonable care and attention, would have seen, appreciated, and responded to. Accepting that the accused saw the warning and advisory signs but failed to see or appreciate the intersection, does not affect my assessment of what a reasonably prudent driver, in her position, would have seen or appreciated. Business records regarding previous collisions – relevance? 171 Apart from the records that were shown to Mr Bakovic that did inform his opinion about the see-through effect at the intersection, the defence tendered a number of documents (not shown to Mr Bakovic) that related to previous collisions at the intersection or that suggested improvements could be made to the intersection.36 It was submitted that the documents were business records and were admissible, independent of Mr Bakovic’s evidence. 172 The prosecution took no specific objection to the documents being business records, but rather highlighted the limited use, if any, of those documents. I have considerable reservations as to whether at least some of the documents that were tendered were brought into existence for the purpose of recording a matter relevant to the business37. However, in circumstances where there was no point taken about whether the documents were business records and therefore admissible pursuant to s 45A Evidence Act, 1929, I will treat them as business records. 173 First, the prosecution submitted that to the extent that the documents make suggestions around improving line of sight to other vehicles, is not relevant to the issue of awareness of the need to give way at the intersection, but rather to judging the gap and negotiating the intersection safely in that sense. Secondly (allied to the first), it may be accepted that the documents suggest the intersection is a candidate for improvement. However, when considering the question of causation, the fact the intersection was a hazardous one does not mean it was the substantial cause of the collision. It was the signage at the intersection, and the consistent message it sent, that mitigated the hazard surrounding the intersection. I set out the list of documents that were tendered: (1) extracts from RAA reports dated May and August 2021, (Exhibits D12 and D13). The full RAA reports were also tendered and formed part of Exhibit D16; 36 Such as improving the line of sight to oncoming traffic. 37 Ryan & Ors v ETSA (No2) (1987) 47 SASR 239 at, 246 (Olsson J). -- 32 of 41 -- [2025] SADC 110 31 (2) a single page document headed ‘Appendix A3 Victor Harbor Road Safety Upgrades’ (Exhibit D14); (3) a Minute to the Executive Director, Transport Strategy and Planning, regarding the prioritisation of works to be conducted on Victor Harbor Road (Exhibit D15); (4) a printout from The Department website dated 11 December 2024, that referred to work being undertaken at the intersection (Exhibit D29); and (5) Hansard from the House of Assembly dated 29 August 2024, (Exhibit D30). 174 The Royal Automobile Association of South Australia Incorporated (RAA) produced a document titled ‘Highway Assessment: Victor Harbor Road’ dated May 2021. The report made numerous recommendations about sections of Victor Harbor Road that could be improved. It recommended that at the intersection with Hindmarsh Tiers Road, a roundabout be installed and intersection warning signs be updated. The following excerpt was relied upon:38 Between 2015 and 2019, three injury crashes occurred at this intersection, with each involving a vehicle turning from Hindmarsh Tiers Road failing to give way to northbound traffic on Victor Harbor Road. Tragically, on 8 April 2021, a fatal crash occurred at this intersection involving a vehicle entering Victor Harbor Road from Hindmarsh Tiers Road and a northbound vehicle on Victor Harbor Road. 175 It was submitted by defence that the reference to ‘three injury crashes’ occurring at the intersection with ‘each involving a vehicle turning from Hindmarsh Tiers Road failing to give way to Northbound Traffic’ supports a conclusion that the three collisions occurred in identical circumstances as the matter before the Court. If that is accepted, the record supports Mr Bakovic’s assessment of the previous collisions. 176 I do not accept that the report permits that conclusion. I reject the defence submission for the simple reason that the reference to a vehicle turning from Hindmarsh Tiers Road and failing to give way is completely different to the matter before the Court. In this case, the accused was not turning at the intersection; she was driving straight through it. The conclusion that the RAA report is referring to previous collisions where vehicles were turning onto Victor Harbor Road is made stronger when one has regard to the RAA report dated August 2021. I set out the relevant extract:39 The five crashes at the intersection with Victor Harbor Road involved vehicles entering Victor Harbor Road from Hindmarsh Tiers Road and failing to give way to a northbound vehicle continuing straight through the intersection on Victor Harbor Road. One of these crashes involved a vehicle making a left turn, and the remaining four involved vehicles 38 Exhibit D12, pg. 30. 39 Exhibit D13, pg. 164. -- 33 of 41 -- [2025] SADC 110 32 making right turns. Tragically in 2021, a person lost their life in a crash in similar circumstances. 177 As can be seen, the report refers to five crashes where vehicles on Hindmarsh Tiers Road entering Victor Harbor Road failed to give way to a northbound vehicle continuing straight through the intersection. The further details are important. It refers to one of the collisions involving the vehicle from Hindmarsh Tiers Road making a left turn, and the remaining vehicles were all turning right when the collisions occurred. In other words, all the previous crashes involved vehicles turning onto Victor Harbor Road. Those previous crashes involved drivers who slowed at the intersection to a point where they made a right or left-hand turn onto Victor Harbor Road. Again, that is completely different from the matter before the Court. 178 The defence relied upon the recommendations (within Exhibit D12) made to improve the safety at the intersection as supporting a finding that there were features of the intersection that made it likely to mislead a motorist about the intersection itself, the give way sign, or an approaching vehicle, such that even a person taking due care may end up in an accident. If a person drove without due care, the dangerous quality of the intersection contributed to accidents, not the dangerousness of the driving. 179 I do not accept the defence submission. The recommendations, as a matter of logic, do not lead to the conclusions advocated for by defence counsel. 180 Exhibit D14 titled ‘Appendix A3 Victor Harbor Road Safety Upgrades’ was a single-page document. The defence relied on references in the document to: (1) sight lines to the south of the intersection being poor for traffic entering from Hindmarsh Tiers Road and Virgin Road due to poor vertical geometry of the Victor Harbor Road northbound carriageway obscuring approaching vehicles; (2) five casualty crashes occurred in 2016, to 2020, (all right angle); and (3) the casualty crash rate is higher than a black spot rate. 181 Exhibit D15 was a Minute to the Executive Director, Transport Strategy and Planning, regarding the prioritisation of works to be conducted on Victor Harbor Road. The defence emphasised the Minute ranked the intersection as the number one priority for an upgrade, citing a need to upgrade turn lanes and sight distance improvements due to the intersection being a ‘high crash location’. The Minute was relied upon as circumstantial evidence supporting the submission that there were features of the intersection that were likely to mislead or confuse a motorist driving into it. 182 The defence relied upon Exhibit D29, a printout from The Department website as of 11 December 2024, that referred to work being undertaken at the -- 34 of 41 -- [2025] SADC 110 33 intersection. The document notes that the work included ‘re-profiling of the intersection to improve sight distance’ and that there were 11 crashes resulting in injuries between 2017, and 2021. 183 The defence relied upon a Hansard from the House of Assembly dated 29 August 2024, (Exhibit D30) where Mr Brown, Member for Florey, said ‘between 2018, and 2022, there were 14 reported accidents at the intersection’, one being fatal (the matter before this Court). The defence argued that the Hansard was a business record of the House of Assembly, which contained the statistics held in relation to the intersection. 184 The defence submitted the various documents about the intersection detail insufficient line of sight and the inclement topography as contributing to crashes at the intersection. It was submitted that the line of sight and topography could have contributed to the collision the Court is considering. It was submitted that the documents support the defence submission that the intersection had ‘problems’. 185 The defence submission that the intersection had problems lacks clarity and overlooks the likely inference that the documents identified a different problem with the intersection to the one contended for by the defence. 186 The defence submissions as to Exhibits D12, D13, D14, D15, D29, and D30, fails to grapple with the reasonable inference that the identified problems around topography and sight lines at the intersection relate to the ability of drivers to be able to see other motor vehicles, as opposed to the intersection. I accept the prosecution submission that the documents more likely indicate that the previous collisions related to drivers who failed to judge the gap while turning onto Victor Harbor Road, whereas this trial involves a driver missing the intersection all together. 187 I reject the defence submission that the documents support Mr Bakovic’s evidence that there were features of the intersection that may cause a driver to either not see the intersection or fail to appreciate the need to give way at it. 188 To the extent that the documents identify the intersection as being hazardous, mainly for reasons that are different to the matter before the Court, the evidence has limited relevance, if any, to the facts in issue. 189 I make clear I have had regard to the evidence for the purposes of considering the arguments advanced by defence in support of their case. I have not relied on the documents in any way to support the prosecution case that the accused was driving dangerously. I have ignored other evidence that was given that suggested 8,000 vehicles per day navigate the intersection without incident. Was the driving dangerous? 190 I turn to consider the key issue in the trial, namely, whether the prosecution has established that the accused’s driving was dangerous, as opposed to careless. -- 35 of 41 -- [2025] SADC 110 34 Prosecution submissions 191 The prosecution submitted that unless driving dangerously, the accused could not have failed to: (1) see, appreciate, or at least prepare to respond to the multiple warning signs notifying the driver of the upcoming intersection and the need to give way at it; (2) see and appreciate the intersection; and (3) see the Ford Territory travelling north on Victor Harbor Road. 192 The prosecution submission was that the evidence supports a finding that the accused either missed the intersection and the need to give way at it or, alternatively, fundamentally misinterpreted it. On either construction, to have done so, she must have had a grossly inattentive lookout, as opposed to a momentary lapse of inattention. 193 The signs around the intersection exclude the possibility of a driver, paying proper attention, not grossly inattentive, being taken by surprise by the intersection. Momentary inattention could not explain the accused missing the intersection completely or failing to appreciate the need to give way at the intersection. The only conclusion to be drawn from the evidence is that there was gross inattention on the part of the accused, which caused the collision. Defence submissions 194 The defence submitted that it was open on the evidence to conclude the accused did not appreciate or respond to the give way sign at the intersection, the intersection itself, or the Ford Territory. It was conceded that she was driving without due care in failing to appreciate or respond to those things. However, it was submitted the evidence does not establish that her failure to appreciate the intersection or the need to give way amounts to dangerous driving. 195 The defence submission was that the intersection was apt to mislead a driver as to the nature of the intersection and the need to give way at it. The signage, unfavourable topography, and inadequate line of sight, lead to the conclusion that momentary inattention accounts for the accused’s failure to appreciate the intersection. Further, I should reject the suggestion, based on Mr Lock’s evidence, that the accused was distracted with her GPS on the basis it involves speculation. 196 The defence submitted a driver may misinterpret the intersection in several ways due to momentary inattention (as opposed to gross inattention). 197 First, the Victor Harbor Road advisory sign ahead of the intersection with a right arrow signalling the direction to Victor Harbor and left arrow signalling the direction to Mount Compass would give a driver the reasonable expectation of a T-intersection ahead, as opposed to a cross-intersection. When a driver next sees a -- 36 of 41 -- [2025] SADC 110 35 cross-intersection, they may consider the give way warning sign did not apply to the intersection that they were coming up to, but to a T-intersection that was yet to come. Therefore, there was no need to give way. Because it was a cross- intersection, a driver may think, reasonably, that the road they were crossing over was not Victor Harbor Road. 198 Secondly, a driver may misinterpret the give way sign as applying to Victor Harbor Road or may not see the give way sign because of momentary inattention. 199 Thirdly, because of the rising topography, Victor Harbor Road is not visible on the approach to the intersection, but Virgin Road can be seen beyond the intersection, giving rise to the see-through effect. If there had been another vehicle in the intersection or on Virgin Road, a driver’s attention would have been drawn beyond the intersection, and in those circumstances a driver may, owing to momentary inattention, fail to perceive the give way sign. The defence relied on Mr Bakovic’s opinion that the see-through effect was operative at the intersection and that there were features of the intersection that made the intersection unsafe. 200 Finally, the defence emphasised that after the left-hand bend, when the give way sign at the intersection is first visible (134.9 metres), assuming a vehicle is travelling at a speed of 75km/h or 20.8 metres per second, there is about seven seconds (or just under) before the vehicle enters the intersection. If, for any number of reasons, a driver, due to momentary inattention, missed the signs or failed to appreciate the intersection, by the time they realised they needed to give way, factoring in perception response times and stopping distances, (at 74km/h, requiring between 74 and 88 metres to stop), it may be too late to stop. 201 Finally, the defence relied upon the decision of R v Goode (‘Goode’)40 in support of their submissions that the driving amounted to driving without due care. Mr Goode was charged with causing death by dangerous driving. The facts were that the accused, while driving at night in rainy conditions, with no artificial light, failed to see a give way advisory sign, did not appreciate the approaching intersection nor the give way sign at the intersection, and drove through the intersection into the path of an oncoming vehicle, killing the other driver. The trial Judge found that the intersection itself was not obvious and that once the accused had missed the give way advisory sign, through momentary inattention, there was no more than five to six seconds before the collision. The trial Judge in that case could not exclude that the driving amounted to due care and acquitted Mr Goode of causing death by dangerous driving. 202 It is convenient to resolve this argument now, before moving on to my analysis as to whether the driving was dangerous. In my view, Goode can be distinguished from the matter before the Court. In Goode, the collision occurred at night, whilst it was dark and raining, and the trial Judge found that the intersection 40 R v Goode [2010] SADC 123. -- 37 of 41 -- [2025] SADC 110 36 was not obvious. In this case, the collision occurred during the day, in fine conditions, and the intersection was obvious for the reasons I will come to. Analysis 203 The assessment as to whether the accused’s driving was dangerous is an objective one. I have earlier set out the relevant legal principles. Whether the accused appreciated she was driving dangerously is not to the point. The question is ‘whether a reasonable person in the situation of the accused would have appreciated the danger’.41 204 Before the left-hand bend on Hindmarch Tiers Road the accused was driving at or around the speed limit of 100km/h.42 The accused had not driven on Hindmarsh Tiers Road to the point of the intersection with Victor Harbor Road before. The intersection was new to her. The accused slowed her vehicle at or during the left-hand bend. Whether she slowed at the bend because she saw the advisory signs or because of the bend in the road, I cannot be sure. As she came out of the bend, she was travelling at 79 km/h. The vehicle slowed slightly although the accelerator was depressed. The brake was not touched until one second before the collision, and there was no heavy braking until the last half second before impact. The steering input indicates the accused was driving straight through the intersection. The lack of braking on the approach to the intersection indicates the accused had no intention of stopping at the intersection or putting herself in a position to give way, if required. At around 30 metres before the intersection, the Ford Territory was in plain sight on Victor Harbor Road. There was no attempt to respond to the oncoming Ford Territory. I am satisfied that the accused entered the intersection at between 66 and 71 km/h. 205 I am satisfied that the accused failed to give way at the intersection because she either failed to appreciate the existence of the intersection and/or the need to give way at it. Further, I am satisfied that the accused failed to see or appreciate the Ford Territory on the approach to the intersection. There was no real dispute about that at trial. 206 The issue is whether the prosecution has established beyond a reasonable doubt that the accused’s failure to appreciate the indications of the approaching intersection, in the environmental conditions she faced, was objectively dangerous.43 207 On the evidence, I cannot be certain as to what the accused was doing, or looking at, as she approached the intersection. It may be, although I cannot be sure, that the accused was concentrating on her GPS rather than the road. That would certainly explain the driving. However, it is not necessary to come to a settled conclusion about that. I am satisfied that whatever she was concentrating on, it was 41 Kroon v The Queen (1991) 55 SASR 476, 478 (King CJ). 42 Exhibit P7, Wade Bell affidavit dated 11 October 2021. 43 Tsalapatis v The King [2025] SASCA 27, [21] (Kourakis CJ) -- 38 of 41 -- [2025] SADC 110 37 not on the road ahead of her. Had the accused been paying attention and acting reasonably, for reasons I will explain, she could not have failed to appreciate signage and the approaching vehicle in time to give way at the intersection. 208 I am satisfied that the first large green Victor Habor Road advisory sign indicates to a driver that they are approaching the Victor Harbor Road. The give way advisory sign is well placed shortly after that tells the driver of the need to give way at the Victor Harbor Road. Moments after, there is a direct line of sight to the intersection. 209 The give way sign for drivers on Hindmarsh Tiers Road faces the driver. I am satisfied it is visible from nearly 135 metres away. Beyond the intersection, the back of the give way sign for Virgin Road can be seen. It too signals the approaching intersection. The second green Victor Habor Road sign faces the driver on the approach to the intersection from Hindmarsh Tiers Road. It was unmistakable. 210 It may be accepted that on the approach to the intersection, the bitumen of Victor Harbor Road cannot be seen until approximately 30 metres before the intersection, because of the vertical alignment between Hindmarsh Tiers Road and Victor Harbor Road. However, the multiplicity of signs made the intersection obvious well before then. There was nothing confusing about the intersection. 211 I do not accept that a driver acting reasonably could possibly consider that the give way sign applied to the Victor Harbor Road. I reject Mr Bakovic’s evidence on this topic. I have earlier explained my reasons for that conclusion. 212 A driver who was paying attention to the road, even if driving on it for the first time, could not fail to appreciate that the intersection they were approaching was the intersection they needed to give way at. 213 I do not accept that a reasonable driver would consider that the first green Victor Harbor Road advisory sign mandated a T-intersection such that there might be confusion when a driver approached the cross-intersection. 214 The Victor Harbor Road advisory sign, in conjunction with the give way advisory sign, indicates to a reasonable driver the need to give way at Victor Harbor Road, whether it be a T-intersection or a cross-intersection. 215 Accepting that a driver may experience cognitive overload if faced with varying inconsistent signs, I am satisfied that was not the case at this intersection. To the contrary, in my view, there was a consistent message conveyed by the signage about the intersection and the need to give way at it. I accept the prosecution submission to that effect. 216 As I said earlier in these reasons, I accept the notion of the see-through effect as a concept. At the heart of the see-through effect is the requirement for something to draw a driver’s attention to something beyond the intersection in front of them. -- 39 of 41 -- [2025] SADC 110 38 For it to occur, there needs to be multiple requirements on the driver in short succession. For example, two sets of traffic lights in close proximity or, in a country setting, a give way sign with a railway crossing following shortly after. As Sergeant Fulcher said, and I accept, the see-through effect does not occur simply because a road continues on after an intersection. In this case, the central features that give rise to the see-through effect were not present. 217 I accept that were a driver to simply look ahead, their attention could be drawn beyond the intersection to Virgin Road. I have not overlooked that the bitumen of Victor Harbor Road cannot be seen on the approach to the intersection until around 30 meters. I have earlier explained why the road is still obvious because of the give way signs and the Victor Harbor Road sign at the intersection. Those key features of the intersection could not be overlooked by a driver who was paying attention. I exclude as a reasonable possibility that the see-through effect could cause a driver who was driving reasonably to miss the intersection or fail to appreciate the need to give way at it. 218 I have considered that it was just under seven seconds after the left-hand bend to the intersection. The intersection was not an unexpected event. Perception response times have little application in those circumstances. The warning and advisory signs ahead of the left-hand bend would lead a reasonably prudent driver to expect the intersection and the need to give way at it. As I have said, after the left-hand bend, the intersection is obvious. Momentary inattention cannot explain the accused’s failure to respond to the intersection. I reject the defence submission to that effect. 219 I am satisfied that the advanced warning and advisory signs, in combination with the signage at the intersection, gave ample warning of the need to give way at the intersection. 220 I am satisfied that a reasonable driver, in the accused’s position, would have seen the indications of the intersection with sufficient time to stop and give way. 221 I am satisfied that the accused failed to give way at the intersection because of her grossly defective lookout. I am satisfied that her lookout was grossly defective, because she either missed or failed to appreciate the advisory signs ahead of the intersection; the give-way sign (and other signage at the intersection) at the intersection, which was visible from 134.9 metres or failed to see or appreciate the intersection itself; and failed to see or respond to the Ford Territory. 222 The failure of the accused to see the indications of the intersection (and the approaching vehicle) and give way was a gross departure from the standard of care and attention expected of a driver. Conclusion and key findings 223 I am satisfied that the accused’s failure to give way at the intersection and then driving into the path of the oncoming Ford Territory, at a speed of between -- 40 of 41 -- [2025] SADC 110 39 66 and 71 km/h, was the result of a grossly defective lookout. I am satisfied that the accused’s grossly defective lookout created an unacceptable risk of injury to other road users, beyond the normal risks of the road. 224 I am satisfied beyond a reasonable doubt that the accused’s driving can only be characterised as dangerous. I am satisfied that her dangerous driving was the substantial cause of death of her sister, serious harm to the driver of the Ford Territory, and harm to her husband. 225 I find the elements of Counts 1, 2 and 3 are established beyond a reasonable doubt. 226 I find the accused guilty of causing death by dangerous driving, causing serious harm by dangerous driving, and causing harm by dangerous driving. -- 41 of 41 --