R v BUSCH [2026] SADC 93

Prosecution: R Counsel: MR P TATE WITH MS M BARTLETT - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: MR THOMAS BUSCH Counsel: MR A CULSHAW - Solicitor: JON LISTER Hearing Date/s: 07/07/2026 to 09/07/2026 File No/s: DCCRM-24-034176 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 BUSCH [2026] SADC 93 Reasons for the Verdicts of her Honour Judge Fuller 4 August 2026 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 and one count of causing harm by dangerous driving – accused pleaded guilty to aggravated driving without due care causing death and due care in the alternative but pleas not accepted by prosecution - prosecution case was one of defective lookout -accused failed to give way to a Mazda sedan at a rural intersection governed by a give-way sign – the Mazda had right of way and was driven by the deceased’s husband – Mazda collided with accused’s vehicle at right angle – deceased suffered acute trauma and died a few days later – deceased’s husband suffered harm – accused interviewed at scene and 9 days later – accused saw a vehicle (a white Tiguan towing a trailer) which had been travelling behind the Mazda but not the Mazda – accused thought he had time to proceed through the intersection safely without stopping – accused could not explain why he did not see Mazda. Dashcam footage from accused’s vehicle of the five seconds prior to impact – in slowed down copy of footage a small part of front of Mazda could be seen for fractions of a second between bushes obscuring view of road on which Mazda was travelling – prosecution relied upon dashcam to establish defective lookout but also alleged the accused had unobstructed view from 500 metres prior to intersection. Airbag module data established speed of accused’s vehicle in five seconds prior to impact and established that accused slowed down for the intersection and applied gradual acceleration one second before impact – speed of accused’s vehicle at impact around 54km/h. Speed limit was 100kmh. The accused was travelling well under the speed limit, was not affected by alcohol or drugs and was not distracted by the use of a mobile phone or any other device. There were no other deficiencies in his manner of driving. View of scene undertaken. -- 1 of 61 -- Defence called expert witness – expert analysed dashcam footage and undertook a process of determining whether Mazda was obscured from view by the A-pillar of the accused’s vehicle during the period covered by the dashcam footage – expert gave evidence that Mazda was on a constant bearing and that it was plausible that Mazda obscured from view – admissibility of opinion challenged by prosecution – opinion ruled admissible. Held: Evidence did not permit a finding that accused had a continuous unobstructed view of the road on which Mazda was travelling from a distance of 500 metres. No evidence led of position of Mazda on road prior to commencement of dashcam footage. Limitations on expert opinion were such that conclusion could not be reached that it was reasonably possible that accused’s view obscured by A- pillar. Accused’s account in interviews accepted as reliable and truthful – accused slowed down upon approach to intersection and looked to left and right – accused saw Tiguan but not Mazda – accused’s failure to see Mazda explicable by reference to combination of factors including that the focus of his attention was on vehicle behind and on possibility that vehicles approaching from other direction would not be visible until on a crest in the road shortly before intersection, the obstruction of view caused by bushes – the accused's defective lookout was in the category of a common human failing. The prosecution has not proved beyond reasonable doubt that there was any aspect of the accused’s driving that subjected the public to some risk over and above that ordinarily associated with the driving of a motor vehicle. Verdicts: Not guilty. Criminal Law Consolidation Act 1935 (SA) s 19A(1), s 19A(3); Road Traffic Act 1961 (SA) s 45(1); Australian Road Rules (SA), Dictionary, ARR 69; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 34KA(1), s 34KA (2)(a), s 34, referred to. R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; R v Bonython (1984) 38 SASR 45; R v Runjanjic (1991) 56 SASR 114; Lang v The Queen (2003) 278 CLR 323; Kamleh v R (1990) 51 A Crim R 435; R v Arnold [2003] SASC 422; R v Donovan [2025] SASCA 7; Jiminez v R (1992) 173 CLR 572; The Queen v Mayne (1975) 11 SASR 583; The Queen v Duncan (1990) 51 A Crim R; R v Coventry (1938) 59 CLR 633; Police v Melisi (2010) 106 SASR 105; R v Hendriksen (2007) 98 SASR 571; McBride v The Queen (1996) 115 CLR 44; Lang v The Queen [2023] HCA 29; R v Mayne (1975) 11 SASR 583, applied. McCandless v Police [2021] SASC 98; Bliss v R (1993) 173 LSJS 256; R v Lenarczyk [2015] SADC 95; Sprigg v Police [2011] SASC 10; Fritsch v Police [2012] SASC 54; Wimmer v Police [2013] SASC 95; Theile v Police [2009] SASC 159; Police v Jachmann [2010] SASC 345; Nagy v Police [2018] SASC 141; R v Pearse [2011] SASCFC 65, discussed. -- 2 of 61 -- R v BUSCH [2026] SADC 93 R v BUSCH Criminal Introduction 1 On 18 December 2023, around 3.20pm at the intersection of Steelton Road and Main Road 45, Steelton, a collision occurred between two vehicles. 2 The accused had been driving a Toyota Landcruiser utility east along Steelton Road intending to cross Main Road 45 and continue on Steelton Road. Mr Smith was driving a Mazda sedan in a southerly direction on Main Road 45. His wife, Mrs Smith, was in the front passenger seat. The accused failed to give way to the Mazda sedan and as a result the Mazda sedan struck the left-hand side of the Toyota Landcruiser. Mr Smith suffered harm as a result of the collision. Mrs Smith suffered acute trauma as a result of the collision and died on 22 December 2023. 3 The accused was subsequently charged with the following offences: Count 1 Offence Details: Causing Death by Dangerous Driving. (Section 19A(1) of the Criminal Law Consolidation Act, 1935). Particulars Thomas James Busch on the 18th day of December 2023 at Steelton, drove a motor vehicle in a manner which was dangerous to any person and thereby caused the death of Marilyn Smith. Count 2 Offence details: Due Care – Aggravated Offence Particulars: On the 18th day of December 2023 at STEELTON in the said State, drove a vehicle namely a motor vehicle registration number S600CUX on a road, namely Steelton Road without due care. Section 45(1) of the Road Traffic Act, 1961. This is an aggravated offence. It is further alleged that the circumstances of aggravation are that the death of, or serious harm to, a person was caused. -- 3 of 61 -- [2026] SADC 93 2 Count 3 Causing Harm by Dangerous Driving. (Section 19A(3) of the Criminal Law Consolidation Act, 1935). Particulars Thomas James Busch on the 18th day of December 2023 at Steelton, drove a motor vehicle in a manner that was dangerous to any person and thereby caused harm to John Smith. Count 4 Offence Details: Due Care – Basic Offence Particulars On the 18th day of December 2023 at STEELTON in the said State, drove a vehicle namely a motor vehicle registration numbers S600CUX on a road namely Steelton Road without due care. Section 45(1) of the Road Traffic Act, 1961. The plea 4 The accused pleaded not guilty to counts 1 and 3 and guilty to counts 2 and 4. He was committed for trial on counts 1 and 3.1 The accused elected for trial by Judge alone and upon his election I heard the trial without a jury. General directions 5 The accused elected for trial by Judge sitting without a jury pursuant to the provisions of section 7 of the Juries Act 1927 (SA). As Lovell J observed in R v G,2 whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.3 6 The general directions were summarised by Lovell J in R v G. They are as follows: As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence. 1 The Information in the District Court was limited to the offences in counts 1 and 3. On the District Court Information they were counts 1 and 2 respectively. 2 R v G [2015] SASC 186. 3 Ibid at [61] – [116]. -- 4 of 61 -- [2026] SADC 93 3 The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged. The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise. The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt. I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty. 7 The accused’s records of interview, and any admissions I find contained therein, are evidence in the case that I can take into account in determining whether the charges have been proved beyond reasonable doubt. There is no onus on the accused to prove anything he said in his records of interview. Elements of the offences charged 8 Section 19A (1) of the Criminal Law Consolidation Act creates the offence of dangerous driving causing death and section 19A (3) creates the offence of dangerous driving causing harm. 9 The offence of causing death by dangerous driving has the following elements: 1. The defendant drove a motor vehicle; 2. The defendant drove the vehicle in a manner that was dangerous to any person; and 3. That by driving in that dangerous manner, the defendant caused the death of another person. 10 The offence of causing harm by dangerous driving has the following elements: 1. The defendant drove a motor vehicle; 2. The defendant drove the vehicle in a manner that was dangerous to any person; and 3. That by driving in that dangerous manner, the defendant caused harm to another person. -- 5 of 61 -- [2026] SADC 93 4 Issues in dispute 11 The central issue in dispute was whether the accused’s manner of driving was dangerous. The manner of driving for this purpose is to be assessed objectively. In this context the objective test is whether a reasonable person, in the situation of the driver, would have appreciated the danger (real or potential) posed to any other person by the manner of driving involved, 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. 12 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. Overview of the prosecution case 13 On 15 December 2023 John and Marilyn Smith travelled to Roxby Downs to visit their daughter. On 18 December 2023, they left Roxby Downs intending to travel to Tailem Bend for dinner. Shortly before 3.20pm Mr Smith was driving a Mazda sedan (‘the Mazda’) on Main Road 45, Steelton in a southerly direction. Main Road 45 is a dual lane bitumen road. The speed limit on Main Road 45 was 100km/h. 14 Steelton Road intersects Main Road 45 and runs in an east/west direction. The speed limit is 100km/h. Traffic travelling on Steelton Road approaching Main Road 45 in either direction is required to give way to traffic on Main Road 45. Give way signs were erected near the intersection for east and westbound traffic on Steelton Road. About one hundred metres from the give-way sign for eastbound traffic on Steelton Road, there was an advisory sign, painted yellow with a black cross. 15 The accused was driving his father’s tan Landcruiser utility (‘the Landcruiser’) in an easterly direction on Steelton Road. The tray of the utility had farm gates in it. As the accused entered the intersection of Steelton Road and Main Road 45 the Landcruiser was struck on the passenger side of the cabin by the Mazda. The collision caused the Landcruiser to roll and both vehicles ended up in a rest position in the southeastern corner of the intersection. 16 Another vehicle, a white Tiguan with a trailer (‘the Tiguan’) had been travelling behind the Mazda in the same direction in the lead up to the collision. The driver of the Tiguan was Michael Kelly and his daughter, Nicola Kelly, was in the front passenger seat. They stopped to render assistance. 17 The Landcruiser was fitted with a dashcam which recorded the view from the front and rear of the vehicle. The dashcam footage commenced from the vicinity of the advisory sign. On the prosecution case, for fractions of a second at a time the Mazda can be seen on the dashcam footage. -- 6 of 61 -- [2026] SADC 93 5 18 The speed of the Landcruiser was reconstructed by an expert from Major Crash Investigation Unit (‘MCIU’) and the speed of the Landcruiser upon impact was estimated to be between 51km/h and 56km/h. The reconstruction revealed that there was no significant braking of the Landcruiser prior to the collision. The reconstruction also established that the Landcruiser slowed down prior to reaching the intersection. 19 There was nothing mechanically wrong with the Mazda or Landcruiser that contributed to the collision. 20 Following the attendance of emergency services and police at the scene, the accused was interviewed by the first police officer on the scene. The accused told that police officer that he had seen the Tiguan but did not see the Mazda. 21 On 27 December 2023, the accused was arrested and formally interviewed. The accused told police that he did not see the Mazda at any time. Defence outline of issues in contention 22 Mr Culshaw, for the accused, outlined the issues in contention as follows: 1. Was the accused’s failure to give way driving in a manner dangerous? 1.1 Given the particular features of this intersection, was it driving in a dangerous manner to make observations of passing traffic on the approach to Main Road 45 rather than stopping at the give way sign. 1.2 Is it possible at the time of the accused’s approach to the intersection that there was any obstruction to his line of sight, whether momentary or ongoing. 1.3 If so, was the failure to observe the Mazda nonetheless driving in a manner dangerous. 1.4 Was the failure to give way, absent any explanation, driving in a manner dangerous. The evidence 23 I turn now to summarise the evidence led at trial. Brevet Sergeant Rebecca Jane Guest 24 Brevet Sergeant Guest had 17 years’ experience as a crash investigator with MCIU. 25 At 4.48pm on 18 December 2023, Brevet Sergeant Guest was advised of the collision.4 She travelled with Brevet Sergeant Lisa Pytlik to the scene, arriving at 6.41pm. A police officer, Jonathon Tinsley, from Riverton Police Station was on 4 T 14. -- 7 of 61 -- [2026] SADC 93 6 scene. The accused and Mr and Mrs Smith were not present, they were receiving medical treatment.5 26 Three google maps of the collision location and its distance from Adelaide were tendered: Exhibit P1. An aerial view of Steelton Road and Main Road 45, with an insert showing a zoomed in view of the intersection was tendered: Exhibit P2. That aerial image was taken recently. It was not to scale. The blue circle in the aerial insert represented the point of impact. 6 27 Brevet Sergeant Guest used a total survey station to produce a plan of the collision scene: Exhibit P3. From her examination of the scene and survey she was able to determine that a right-angle collision had occurred within the southbound traffic lane of Main Road 45 and that, following the collision, both vehicles had rotated to the south-eastern aspect of the intersection and come to rest quite close to each other. The Mazda was travelling south along Main Road 45 and collided with the passenger side of the Toyota Landcruiser being driven east along Steelton Road. The speed limit for both roads was 100km/h.7 28 The point of impact (A) was marked on P3. Brevet Sergeant Guest was able to determine the point of impact based on the location of the commencement of the tyre marks and a gouge mark indicative of the area where the vehicles collided. The tyre marks were marked with a T and a number, and the gouge marks with a G and a number. A scrape mark was marked S1. A gouge mark is a divot, and a scrape mark is more superficial.8 29 For vehicles travelling in an easterly direction approaching the intersection of Main Road 45 there were two areas of signage. There was an advisory sign (yellow diamond with black cross) and closer to the intersection there was a standard give-way sign. The give way sign was marked on P3.9 30 Main Road 45 was dry, in good condition and free of any foreign objects other than those resulting from the collision. Steelton Road was in good condition for a gravel road with no corrugations or other hazards sometimes found on such roads. The weather was fine when Brevet Sergeant Guest attended.10 31 Brevet Sergeant Guest did not include the shrubs and trees along Main Road 45 on P3 as it was difficult to accurately represent their position, so photographs were taken instead.11 32 The width of the intersection (from start to end of the bitumen where Steelton Road intersects) was 20.06m. The give way sign was 20m from the point of impact. 5 T 16. 6 T 19-20. 7 T 22. 8 T 24-25. 9 T 23. 10 T 23. 11 T 26. -- 8 of 61 -- [2026] SADC 93 7 The give way sign was 6m from to the closest edge of the bitumen. The give way sign was 12m from the broken white lines.12 33 The front of the Landcruiser in its rest position was 17.7m south-east of the point of impact and 19.5m east of the western bitumen edge of Main Road 45. The front left corner of the Mazda was 13.8m south-east of the point of impact and 13.8m east of the western bitumen edge of Main Road 45.13 34 Brevet Sergeant Guest did not find any evidence of pre-impact braking north or west of the point of impact.14 She said that all tyre marks and orientation were consistent with post-collision movement of both vehicles. When the Mazda collided with the Toyota Landcruiser the front of the vehicle dug in and left a gouge mark. The tyre marks attributable to the Toyota Landcruiser indicate that it rotated in an anticlockwise direction following impact.15 The Mazda spun in an anticlockwise direction post impact.16 The height disparity between the two vehicles resulting in the Mazda pushing under the left side of the Toyota Landcruiser causing it to tip and then when airborne roll side to side.17 35 Brevet Sergeant Guest viewed the dashcam footage after she surveyed the area and it confirmed her findings.18 36 Photographs of the scene taken on 18 December 2023 were tendered: Exhibit P4. A booklet containing 24 photographs from P4 which had been annotated was also tendered: Exhibit P5. The vehicles were in situ in those photographs. 37 Brevet Sergeant Guest said the intersection advisory sign was 100 m before the intersection (photograph 1 of P5).19 38 Photograph 21 of P4 shows the view available to a driver on Steelton Road approaching the intersection. The intersection advisory sign is visible. The photograph was taken by Brevet Sergeant Guest when she was on foot. The bushes running along Main Road 45 on the eastern and western side are visible.20 39 Photograph 22 of P4 was taken from the same position as photograph 21 but looking further to the left (north).21 Photographs 23-25 were taken from the same position but looking south.22 12 T 27-28. 13 T 29. 14 T 30. 15 T 31-32. 16 T 33. 17 T 34-35. 18 T 35. 19 T 42. 20 T 43-44. 21 T 44. 22 T 45. -- 9 of 61 -- [2026] SADC 93 8 40 Photograph 26 of P4 was taken closer to the give-way sign.23 Photographs 27 and 28 were taken from the same position but looking in a more southerly direction. Photographs 29-31 were taken from the same position but looking in a progressively more northerly direction. The last bush on the western side of Main Road 45 before the intersection is visible in photograph 29.24 That bush can also be seen in photograph 6 in P5. Photograph 34 shows the gap between the last bush before the intersection on the western side of Main Road 45 and the next bush.25 41 Photograph 31 shows the bushes that could be seen as a person was on Steelton Road looking to the left as vehicles are travelling on Main Road 45.26 42 Brevet Sergeant Guest did not estimate the height of the bushes from the ground.27 43 Photograph 45 of P4 and photograph 7 in P5 show the view in a southerly direction for vehicles travelling on Main Road 45 approaching the intersection.28 44 Steelton Road is on a decline for traffic travelling in an easterly direction towards the intersection as shown in photograph 55 of P4.29 Two photographs showing the decline in Steelton Road east of the intersection were tendered: Exhibit P6. The second photograph was taken about 500 metres from the intersection. Those photographs were taken on 29 June 2026.30 45 The Mazda and Toyota Landcruiser were towed from the scene to Ottoway. Photographs of the Toyota Landcruiser and the damage sustained were on pages 17 and 18 of P5. The impact of the collision buckled the frame and twisted the chassis causing the windscreen to smash on the left side. The left side of the vehicle at the area of the B pillar had extensive intrusion due to the bend in the chassis and the left side doors had been forced inwards. The cabin was still intact on the driver’s side but there was a change to the shape of the cabin on the passenger side.31 46 The Toyota Landcruiser was fitted with a BlackVue DR70G Pro dashcam. It was positioned next to the rear-view mirror. A photograph of the windscreen of the Toyota Landcruiser was tendered showing the mounting tape for the dashcam: Exhibit P7. The A pillar is visible in this photograph. 32 47 The footage was retrieved from the forward facing and back facing dashcam. Brevet Sergeant Guest also produced a slowed down version of the footage from 23 T 45. 24 T 46-47. 25 T 48. 26 T 47. 27 T 50. 28 T 51. 29 T 53. 30 T 55-56. 31 T 57-58. 32 T 59-60. -- 10 of 61 -- [2026] SADC 93 9 the forward-facing camera. The footage shows the moments immediately prior to the collision. That footage was tendered: Exhibit P8. 48 Seven still photographs were taken from the footage and tendered: Exhibit P9. The yellow arrows on P9 indicate where the front of the Mazda was visible in the footage.33 49 The time stamp on the footage in P8 is incorrect and is 35 minutes behind the actual time.34 50 The overall height of the model of Landcruiser involved in the collision was 195.5cm (from the ground to the top of the cabin). The mounting position of the dashcam was approximately 180cm from the ground. This was an approximate measurement taking into account the damage to the cabin. The accused was between 180-185cm tall. Brevet Sergeant Guest said she was 173cm tall. She said that a driver might sit in a position similar to her standing height if she was standing on the outside of the vehicle. The dashcam was slightly above the seated position of a person in the driver’s seat and similar to the position of a rear-view mirror.35 51 On 27 December 2023, the accused was interviewed under caution by Brevet Sergeant Guest and Brevet Sergeant Pytlik.36 A USB with the videorecorded interview was tendered: Exhibit P16. The transcript was marked for identification: MFI P16A. The following is a summary of that interview: 1. On 18 December 2023, the accused was travelling in an easterly direction on Steelton Road. He had been to the shop in Saddleworth to get a couple of gates. He was heading back towards the farm in Tothill Belt. 2. The accused estimated he left Saddleworth around ten minutes before the collision, around 3.00pm. 3. The trip from Saddleworth to Tothill Belt usually took about twenty minutes. 4. He drove that section of road once every couple of weeks, but sometimes more often depending on where he was working. 5. He had been living in the area all his life and he was twenty-eight years old. 6. Since he had his licence, he had travelled that road fairly regularly. That is where their post office was, so it was a regular to and from trip. 7. The accused said ‘it was not a great intersection’ because there was a little rise on one side. He said he would come down the hill at the intersection, so he had a pretty good view. He saw there was a car with a trailer behind the car that he hit. He saw the car with the trailer, and it was well back from the intersection, but he just never saw the car in front. 33 T 64. 34 T 65. 35 T 66-67. 36 T 118-119 -- 11 of 61 -- [2026] SADC 93 10 8. The accused said he went across the intersection and then the other car hit him from the passenger side. 9. The road he was travelling on was a gravel dirt road and Main Road 45 was bitumen. He thought the speed limit for both roads was 110km/h. 10. The accused was aware there was a give way sign on the approach to the intersection and he saw it on the day of the collision. 11. The car with trailer was at least a couple of hundred metres back from the intersection, ‘well back’. 12. He did not see anything coming from the opposite direction, that is, heading north. 13. The accused said he would have slowed down a bit coming down but he did not see any other cars and ‘thought I was good to go’. 14. After the impact he jumped out of his car and then the second car pulled up and they did not have phone service, so he got his phone out of the car and rang 000. 15. After the impact, his car was on the south-eastern corner. It had rolled and was facing back the other way. The Mazda was just in front of his car. 16. He did not remember exactly what the weather was like, but it was not raining; it was a fairly normal day. He could not recall if it was sunny or overcast. 17. As he approached Main Road 45 the slight rise was to the right. 18. The accused had been driving the utility for about six months and was fairly familiar with it. 19. He did not wear glasses, take medication or have any hearing conditions. He felt normal. He had woken up around 7.00am, had breakfast and started working. He had not had anything to drink and did not take drugs. He was not using his mobile phone at the time of the collision. 20. When told that the Mazda could be seen in the dashcam footage approaching the intersection from his left, he said he had no idea why he had not seen it. He said he did not see them until they were ‘basically getting next to me’. 21. When asked why he had seen the car behind but not the car that hit him he said he had no idea. 22. Steelton Road was normally fairly quiet. 23. He sustained a couple of cracked ribs and a cut to the back of his head. 52 Brevet Sergeant Guest said a blood sample was taken from the accused pursuant to s 47 of the Road Traffic Act.37 Brevet Sergeant Guest was asked to estimate the height of the accused’s eyeline compared to the position of the 37 T 121. -- 12 of 61 -- [2026] SADC 93 11 dashcam. She said the camera was mounted slightly higher and forward of the driver’s seat position. 38 Cross-examination 53 Brevet Sergeant Guest said that one of the photographs tendered in evidence was taken on Steelton Road, five hundred metres west of the intersection. She used the odometer in her vehicle to measure this.39 54 The dashcam in the accused’s vehicle did not have a monitor with a live feed connected to it and therefore the accused could not see the footage being captured at the time he was driving.40 55 Brevet Sergeant Guest agreed that as a vehicle comes down the hill on Steelton Road before it flattens out, there is a clear line of sight of traffic on Main Road in both directions. Steelton Road levels more than one hundred metres before the intersection.41 56 Brevet Sergeant Guest agreed that the bushes which lined Main Road 45 on the western side, north of the Steelton Road intersection had leaves on them at the time of collision.42 She also agreed that some of the bushes were so close to each other that there was no gap between them and others had gaps between. She said that as the angle changes on approach to the intersection from Steelton Road the view opens or closes depending on how or where a person is looking. Brevet Sergeant Guest accepted that if a person was standing in line with the bushes looking due north the gaps would not be visible.43 57 Brevet Sergeant Guest agreed that, in parts, the bushes created an obstruction to the line of sight to the north upon approaching the intersection from west to east.44 She was taken to photograph 34 in P4 and said that the view of Main Road 45 was partially obstructed. She said it would be difficult to see through the shrubs themselves. She said there was still light that came through the leaves and therefore still the possibility that movement could be seen.45 58 Brevet Sergeant Guest agreed that by the time a person was at the painted give-way line they have a much better view of traffic from the north because they have gone past the bushes. Brevet Sergeant Guest agreed that the give-way line was faded in December 2023. 46 38 T 122. 39 T 122-123. 40 T 124. 41 T 124-125. 42 T 127. 43 T 127-128. 44 T 129. 45 T 130-131. 46 T 133-134. -- 13 of 61 -- [2026] SADC 93 12 59 The focus of the investigation was on what a person in the position of the accused could see to the left. Brevet Sergeant Guest said what could be seen to the right was not as relevant. She did not know if Main Road 45 rose to the south and then after a crest, fell.47 60 Brevet Sergeant Guest agreed that in the record of interview the accused said that there was a rise to the right of the intersection. However, she did not go back to the scene to look more closely at the view from the give-way sign to the right.48 61 Brevet Sergeant Guest agreed that the Toyota Landcruiser had a utility tray with fencing materials in it. However, she could not comment on how long it would take this vehicle to clear the intersection.49 62 Brevet Sergeant Guest was taken to photograph 17 of P5 and agreed that the A-pillar can be seen. She agreed that the A-pillar will always be in the line of sight of a driver.50 The A-pillar was not in the field of vision of the dashcam.51 Brevet Sergeant Guest said that the A-pillar on the driver’s side was less damaged than the A-pillar on the passenger side. When asked if the A-pillar took on any particular prominence in the investigation she said that it did not, because every vehicle is fitted with an A-pillar and it was something a motorist was expected to account for when driving.52 63 Brevet Sergeant Guest was asked if she considered what obstructions might have existed to the accused’s line of sight that might explain why he saw the second car but not the first. She said she did think about it and that was why she asked him if he had any explanation for not seeing the Mazda. He said he did not know.53 She did not give any direction for a reconstruction to be undertaken to see if obstruction caused by the A-pillar could have been an explanation for the accused’s failure to see the Mazda.54 Re-examination 64 Brevet Sergeant Guest said that photograph 32 was taken from the left side of the western aspect of Steelton Road twenty metres west of the give-way sign.55 View of the scene 65 I granted an application by the prosecution for a view of the scene to be conducted. That view took place on the first day of trial following part of the examination in chief of Brevet Sergeant Guest. I remind myself that a view is not 47 T 135. 48 T 135-136. 49 T 137-138. 50 T 140. 51 T 140-141. 52 T 142-143. 53 T 147. 54 T 148. 55 T 149-150. -- 14 of 61 -- [2026] SADC 93 13 evidence but was conducted to assist me to understand the evidence. The view has been of significant assistance to me in understanding the evidence. 66 The view commenced on Steelton Road at a point closer to the intersection that the second photograph in P6. It commenced just past the tree on the northern side of Steelton Road that can be seen in the first photograph in P6. I took note of the view behind me and the fact that Steelton Road sloped down towards the intersection with Main Road 45. I noted trees and bushes lining the northern side of Steelton Road west of the commencement of the view. 67 I noted that an advisory sign could be seen in the distance on the left-hand side of Steelton Road and further on a give way sign. From this vantage point I noted that there were a number of bushes lining Main Road 45 to the left of the intersection which were on the westerly and easterly side of Main Road 45 and which obscured the view of Main Road 45 in the location of the bushes. I noted the view of Main Road 45 in both directions and noted that the view of Main Road 45 to the south revealed that there was a crest in the road after which the road could not clearly be seen. 68 I then travelled to the vicinity of the advisory sign on Steelton Road and again noted the bushes lining the western side of Main Road 45. At that vantage point and angle, when looking in a northerly direction towards Main Road 45, the gaps between the bushes that had been visible at the commencement point of the view had reduced, increasing the obstruction of my view of Main Road 45. 69 Next, I travelled to the vicinity of the give way sign. I noted there was a faint broken white line on the bitumen which had faded towards the centre of the bitumen or was obscured by dirt and gravel. At this vantage point and angle, when looking in a northerly direction towards Main Road 45 I was unable to see up Main Road 45 any further than a few metres. When looking in a southerly direction along Main Road 45 there was a crest in the road after which the road could not be seen. 70 I then moved into the middle of the intersection at the approximate point of impact. I noted the general layout and features of the intersection including the bitumen shoulders which extended onto Steelton Road. 71 I then walked north up Main Road 45 to a position about twenty metres north of a power pole that was depicted in photographs 20 and 21 in P4. I took note of the view of the intersection and noted that where the bushes were located on the western side of Main Road 45 the view of Steelton Road was obscured. 72 Finally, I travelled further north along Main Road 45 and then walked back to the intersection. I noted that from the point in time where the line of bushes on the western side commenced the view of Steelton Road to the west was obscured. -- 15 of 61 -- [2026] SADC 93 14 Senior Sergeant David Ross Kuchenmeister 73 Senior Sergeant Kuchenmeister had worked in MCIU for 23 years. He was the senior technical examiner/reconstructionist. His role involved examining collisions using established physics and mathematical methodologies to answer questions about a collision. There was no challenge to his expertise. It was established that he had attended multiple reconstruction courses including courses relating to crash data retrieval. He was qualified to retrieve and analyse crash data from an airbag module.56 74 Senior Sergeant Kuchenmeister explained that airbag modules receive a lot of data from a lot of different computers in a car. The module is constantly analysing that data and will operate as a predictor of a crash event. If it detects that a crash is about to occur the event data recorder (EDR) starts to record the data.57 75 The EDR is inside the airbag module and has a memory chip inside it. The EDR is constantly receiving information from various parts of the vehicle, including the speed, the steering angle, how far the steering is turned from zero, whether seatbelts are on or off, brake pressure, brake system, engine RPM and associated safety systems such as seatbelt pretensioners.58 76 Senior Sergeant Kuchenmeister had experience in retrieving data from an EDR and reproducing it in table form. The data that is typically captured is for a period approximately five seconds prior to impact which is about the time that the airbag is deployed.59 77 Senior Sergeant Kuchenmeister was asked to retrieve the data from the EDR of the Toyota Landcruiser. Before doing so, he reviewed Brevet Sergeant Guest’s affidavit, the scale plan, photographs of the scene and the dashcam footage.60 On 27 December 2023, Senior Sergeant Kuchenmeister attended Ottoway to obtain the data and produced a report.61 78 Senior Sergeant Kuchenmeister explained that this form of data was considered to be highly accurate as a result of the testing performed on it by car companies as part of their research and development.62 79 A table of pre-crash data extracted from the Toyota Landcruiser was tendered: Exhibit P10. The data is recorded in half second increments. The following information about the Toyota Landcruiser in the five seconds prior to impact appears in P10: 56 T 78-79. 57 T 79. 58 T 81. 59 T 82. 60 T 83-84. 61 T 84. 62 T 85. -- 16 of 61 -- [2026] SADC 93 15 1. 5 seconds prior to impact the Landcruiser was travelling at 59km/h. 2. 4 seconds prior to impact the Landcruiser was travelling at 56km/h. 3. 3 seconds prior to impact the Landcruiser was travelling at 52km/h. 4. 2 seconds before impact the Landcruiser was travelling at 52km/h. 5. 1 second before impact the Landcruiser was travelling at 53km/h. 6. At the point of impact the Landcruiser was travelling at 54km/h. 80 Senior Sergeant Kuchenmeister interpreted that speed data by reference to the service brake and accelerator pedal percentage data, which was as follows: 1. Between 5 and 3 seconds prior to the impact, the service brake was on. 2. Between 2.5 seconds and the impact the service brake was off. 3. Between 5 and 2.5 seconds prior to impact the accelerator percentage was zero. 4. At 2 seconds prior to impact the accelerator percentage was 17.0. 5. At 1.5 seconds prior to impact the accelerator percentage was 19.0. 6. At 1 second prior to impact the accelerator percentage was 20.0. 7. At .5 seconds prior to impact the accelerator percentage was 31.0. 81 Senior Sergeant Kuchenmeister explained that an accelerator percentage of zero means that there was no pressure being applied to the accelerator pedal at all.63 The fact that the service brake was recorded as on simply meant that there was some pressure being applied to the brake pedal sufficient to illuminate the rear tail- lights. It is not an indication of the level of braking. The slightest touch of the brake pedal will illuminate the brake lights and that is why it should not be used as an indication of the level of braking. The brake oil pressure data is what is used to determine the level of braking. In this case the figure of 1MPA indicated that the brakes were being applied without any significant force. In contrast a figure of 12MPA indicates ABS braking; hard significant braking.64 82 The drop in speed from 59km/h to 52km/h is consistent with the corresponding low level of brake pressure being applied.65 Between three seconds to two and a half seconds prior to impact the service brake indicator moves from on to off. This indicated that the foot had been taken off the brake and, based on the remaining data including brake oil pressure, was moving towards the accelerator. At two seconds to impact the accelerator data moves from zero to seventeen which is quite normal and consistent with the time it takes for a driver 63 T 89. 64 T 90. 65 T 90. -- 17 of 61 -- [2026] SADC 93 16 during normal driving to lift a foot from the brake and move it across to the accelerator and apply pressure.66 83 Senior Sergeant Kuchenmeister said that the change from 0 to 17 in the accelerator pedal percentage data between two and half seconds before impact and two seconds before impact was slight acceleration. At half a second before collision the accelerator pedal percentage increased to 31 which Senior Sergeant Kuchenmeister described as gradual acceleration using the accelerator pedal.67 84 If a vehicle was travelling down a hill and accelerating as a result, the accelerator pedal percentage would remain at zero but if the driver was trying to maintain a speed, then the data might reveal the service brake in the on position and an increase in brake oil pressure.68 85 Senior Sergeant Kuchenmeister said that the recorded speed of 54km/h at impact was approximate only because the speed is plus or minus 1km/h.69 86 The only other data on P10 of any relevance was the Engine RPM data. In this case the figure for Engine RPM was not significant. Yaw rate and steering input data showed that the vehicle was moving normally on the road and the driver steering in a straight line.70 87 Senior Sergeant Kuchenmeister obtained the gear ratios for this particular car from Toyota and ran some simple equations using tyre size and engine RPM to determine the theoretical speed the vehicle could have been travelling and the speed recorded in P10 sat neatly in between the range from those calculations.71 88 Senior Sergeant Kuchenmeister explained that the speed recorded by the dashcam is produced by the GPS system calculating the approximate distance travelled over a period of time and then displays an average speed. The speed is usually pretty accurate, but it depends on how many satellites the GPS unit is affixed to at any given point in time. It is an average speed between the last two data points.72 89 The dashcam recorded a speed of 55km/h at the point of impact which fit within the range of the airbag data and the range of the theoretical speed the vehicle could be travelling. Accordingly, Senior Sergeant Kuchenmeister said the dashcam recorded speed was reasonably accurate. However, he would prefer to rely upon 66 T 91 67 T 91-92. 68 T 93. 69 T 93. 70 T 95-96. 71 T 96. 72 T 98. -- 18 of 61 -- [2026] SADC 93 17 the airbag data in estimating the speed. 73 That being the case, the speed at the time of impact could have been 53, 54 or 55km/h.74 90 Senior Sergeant Kuchenmeister calculated the average speed of the vehicle for the five seconds prior to impact. Using that average of 54km/h he said it would have taken the Landcruiser 33 seconds to travel five hundred metres. On the assumption that the Landcruiser was travelling at the lowest speed recorded in P10, which was 52km/h, it would take 34 seconds to travel five hundred metres. Using the highest recorded speed in P10, which was 59km/h it would have taken 30 seconds to travel 500 metres.75 91 There was no hard pre-impact braking by the Toyota Landcruiser.76 Cross-examination 92 Senior Sergeant Kuchennmeister agreed that in arriving at the speeds at which the Landcruiser travelled five hundred metres he was extrapolating speeds from the five seconds prior to impact to the previous 25 seconds before that. He agreed he had no data about the actual speed of the Landcruiser in those 25 seconds.77 93 Senior Sergeant Kuchenmeister agreed that to convert kilometres per hour to metres per second it is necessary to divide by 3.6. At 36km/h an object will be travelling at 10 metres per second. At 72km/h an object will be travelling at 20 metres per second. At 108km/h an object will be travelling at 30 metres per second. On a country road if a vehicle was travelling around 110km/h it would be travelling a little faster than 30 metres per second.78 94 Senior Sergeant Kuchenmeister said that the average speed of the Landcruiser was 54km/h which was exactly 15 metres per second.79 95 If an object was travelling at 10km/h and five seconds later, it was travelling at 15km/h the acceleration rate is 1km/h. If a vehicle was travelling 90km/h and then an hour later, it was travelling 100km/h an average acceleration rate could be calculated but that would not necessarily represent the speed of the vehicle at all points along the continuum.80 96 Senior Sergeant Kuchenmeister agreed that the increase in speed in the last two seconds before impact was very small and it could be possible that the speed had not increased at all.81 He agreed that in the five seconds of data in P10 there 73 T 98-99. 74 T 100. 75 T 100. 76 T 101. 77 T 101. 78 T 103-104. 79 T 104. 80 T 106. 81 T 109. -- 19 of 61 -- [2026] SADC 93 18 had been light braking and then light acceleration. He could not say what braking or acceleration occurred beyond five seconds before impact.82 97 The dashcam was played to Senior Sergeant Kuchenmeister. He agreed that the speed as recorded on the dashcam five seconds before impact was 74km/h and decreased to 55km/h at impact. He agreed that the way in which the speed was calculated by the dashcam could result in a lag, such that the speed displayed at a particular point in time was the speed being travelled at an earlier point in time. He further agreed that it was open to infer and probable that prior to five seconds before impact the vehicle may have been travelling at 74km/h. He also agreed with the proposition that the braking in the three to five seconds prior to the impact could have been the end of a longer period of braking.83 98 Finally, Senior Sergeant Kuchenmeister agreed that at the point of impact when the dashcam showed a speed of 55km/h it might have caught up to that speed in the last five seconds.84 John Smith 99 I was informed that Mr Smith had died between the time of the collision and the trial. I admitted his statement dated 18 January 2024 by consent pursuant to subsections (1) and (2) (a) of section 34KA Evidence Act 1929: Exhibit P11. 100 In summary Mr Smith’s evidence as contained in his statement was as follows: 1. On Friday 15 December 2023 he and his wife Marilyn Smith travelled to Roxby Downs to visit their daughter. They stayed for the weekend and left on the morning of Monday 18 December 2023, intending to travel to Tailem Bend for dinner. They were not in a hurry. 2. He reviewed the timeline on the google map application on his mobile phone and it accurately reflected his memory of the travel routes and stop times on 18 December 2023. 3. On 18 December 2023, they left Roxby Downs at 9.06am and drove to Port Augusta where they stopped for lunch at McDonalds between 11.47am and 12.42pm. Marilyn Smith drove the car from Roxby Downs to Port Augusta. 4. Mr Smith drove the car from Port Augusta to Spalding where they stopped at Hunts Fuel to have a drink and stretch their legs. They were there between 2.12pm and 2.31pm. 5. From Spalding, Mr Smith drove south along Main Road 45. He had never travelled on that road before, but it was a bitumen road in good condition. Along the length of Main Road 45, traffic had the right of way at any side road intersections. He could not recall seeing a speed sign but assumed it was a 110km/h zone and he was travelling 109km/h. 82 T 109-110. 83 T 112-113. 84 T 114. -- 20 of 61 -- [2026] SADC 93 19 6. Marilyn was in the front passenger seat and may have had her eyes closed as they were not talking at the time. They were both wearing seatbelts, and the road was dry, the weather was fine and cloudy. 7. As Mr Smith approached the intersection of Steelton Road he saw dust in the air on the right side of the intersection. The dust further away was higher than the dust closer to him so he assumed there was a vehicle travelling towards him, but he could not see it. He continued to travel south and then suddenly he felt and heard a significant impact at the front of their car. 8. Mr Smith did not see the other vehicle at all and once their car stopped, they were in a paddock just off the south-eastern corner of the intersection facing back towards Main Road 45. He lost his glasses during the impact and could not see well but he knew people were there to help and someone was at Marilyn’s window. She was conscious and asked what happened. She kept saying that she could not breathe. They both stayed in the vehicle until the ambulance arrived. Emergency services cut both doors off, and he walked to the stretcher, but Marilyn needed assistance as she had mobility issues due to a medical condition. 9. They were both flown to the Royal Adelaide Hospital. As a result of the collision he suffered cracked ribs, a laceration on his arm and head and cracked sinus bones. He was discharged on 21 December 2023 with no follow up treatment. 10. Marilyn Smith was admitted to the intensive care unit and had surgery for her injuries. She never regained consciousness. Her injuries were severe and included multiple fractured vertebrae, multiple breaks in several ribs that caused loose segments of bone resulting in a collapsed punctured and herniated lung. She was kept comfortable until her daughter returned from America and she then died on 22 December 2023. 11. The vehicle they were driving was a 2013 Mazda sedan which belonged to their daughter, and it had no mechanical issues. Mr Smith had been driving since he was seventeen years old and held a licence with a condition that he wear glasses. He also held a heavy vehicle licence and had annual fitness to drive assessments. 12. Marilyn and he were married on 8 January 1983, and they had one daughter together. Marilyn had a son and daughter from a previous marriage. Marilyn had ongoing medical conditions including vasculitis which caused her ankles to collapse in on themselves. She used a walking stick and wheelchair. Long term steroidal medication caused her osteoporosis. She had high blood pressure and cholesterol which were controlled by medication. Michael Kelly 101 Mr Kelly’s statement dated 20 February 2024 was tendered by consent on the basis that the contents comprised the evidence he would have given if called: Exhibit P12. In respect of one aspect of his statement, it was agreed by the parties that he was mistaken when he estimated the speed of the accused’s vehicle as being not less than 80km/h. I agreed to receive the evidence of Mr Kelly in statement form subject to that qualification. 102 In summary Mr Kelly’s evidence as contained in his statement was as follows: 1. At the time he signed his statement, Mr Kelly was 52 years old. -- 21 of 61 -- [2026] SADC 93 20 2. He was a serving member of the NSW Police Force and was a Sergeant in the position of Operations Coordinator at Newcastle City Police District. 3. At about 3.20pm on Monday 18 December 2023, he was travelling in a generally southerly direction on Main Road 45, north of the township of Marrabel. He was travelling with his daughter Nicola Kelly and they were travelling from Cobar NSW to the Barossa Valley. He was driving his Volkswagen Tiguan at approximately 100km/h in the 100km/h zone. 4. At this time, he was following a blue Mazda 6 sedan which was between 100 and 200 metres ahead and appeared to be travelling at the same speed, as the gap between the two vehicles remained the same. 5. As they approached the intersection with Steelton Road, he saw a vehicle travelling in a generally easterly direction towards them from their right side. He could see this vehicle for quite some distance due to the dust trail it was emitting from the unsealed road surface. He estimated the speed of this vehicle to be not less than 80km/h. He thought it was going too fast as it was approaching the intersection where it ‘should have had to stop and give way to approaching vehicles’. 6. He saw the eastbound vehicle enter the intersection failing to give way to the Mazda. He saw the front of the Mazda collide with the passenger side of the vehicle which was a sandy taupe coloured Toyota Landcruiser tray back utility. He saw the Landcruiser become airborne and roll landing on its driver’s side and stopping with the front of the vehicle facing in a generally westerly direction. The Mazda spun around and ended up stopping near the Toyota facing in a generally north-westerly direction. Both vehicles were in a paddock on the south-eastern corner of the intersection. 7. Mr Kelly immediately pulled over. He saw that both vehicles had extensive damage. He ran to the Mazda to check the occupants and had a short conversation with an elderly male driver and then checked on the elderly female passenger. He had a short conversation with her before running to the Landcruiser to check on the driver. He was climbing out of the upright window of the Landcruiser and had a laceration to his head and blood running down his face. He appeared dazed and in shock. Mr Kelly asked the driver of the Landcruiser to ring 000. He appeared to do so. 8. Mr Kelly then returned to the Mazda and spoke again with the occupants. Both airbags had deployed and both occupants had injuries from the airbags and seatbelts. The female passenger complained of a lot of pain and had open wounds on her chest and arm. They appeared to be from the seatbelt. 9. Other people then arrived on the scene, and he helped them disconnect the battery in the Mazda. He stayed with the female passenger until local emergency services arrived. Nicola Kelly 103 A statement dated 20 February 2024 signed by Nicola Kelly was tendered by consent on the basis that it contained the evidence she would have given if called: Exhibit P14. 104 In summary Ms Kelly’s evidence as contained in her statement was as follows: -- 22 of 61 -- [2026] SADC 93 21 1. On Monday 18 December 2023, at about 3.30pm, Ms Kelly and her father, Michael Kelly were travelling towards the Barossa Valley. She was not sure what road they were travelling on, but the next town was Marrabel. 2. Mr Kelly was driving a gold Volkswagen Tiguan, and she was in the front passenger seat. They were towing a trailer with her possessions in it, and they were heading over to Western Australia from New South Wales. She was moving to WA and she and her father were booked in to stay at the Barossa that evening and then Ceduna the next day. 3. As they were travelling south towards the Barossa, she saw a tan coloured ute, coming along the dirt road to their right, a bit further ahead. She could tell it was a dirt road because of the dust in the air. She knew it was heading towards them as the dust was behind it and showed where it was coming from. She thought the ute was travelling quite fast. 4. There was a blue or grey Mazda travelling ahead of their car and had been for a while. She estimated it to be about five seconds ahead of their car. As the Mazda approached the section of road that intersected with the dirt road the ute was travelling on, it did not brake at all. The next thing that happened was the ute was in the middle of the road and the Mazda drove straight into the passenger side of the ute. 5. The ute flew up into the air, towards a paddock to the left of where the collision occurred. The Mazda spun around and finished half in the paddock and half on the bitumen, facing back in the direction it had come. 6. Once both cars came to rest, her father pulled over and they rushed over to help. The man from the ute climbed out of the passenger door which was up in the air as the ute had rolled and landed on the driver’s side. She said he seemed okay, other than a laceration to his head. He had blood down the side of his face. The driver was a Caucasian male, slender build, late twenties, brunette hair and a little taller than average. He asked if they needed to call 000 but they had no phone reception, so the driver called using the phone of another man who stopped at the scene. 7. She and her father went over to the Mazda and checked on the elderly male driver. He asked what happened and was asking about his wife who was in the front passenger seat. They went around to the passenger side and opened the door. The elderly female was belted in, the airbags and gone off and she had cuts to both of her arms. There were no other obvious injuries, but she had her head back with her eyes closed and she said she could not breathe. A SES worker arrived five minutes later and then a SES truck. She and her father then stepped back and let everyone get on with their jobs. 8. The weather was fine on the day of the crash. There were blue skies, it was clear and no sun glare that she could recall. The roads were quiet; she did not remember seeing any other cars around. 9. The road they were on was made of bitumen and in good condition. The bitumen road was the main road at the intersection and did not have any stop or give-way signs. The dirt road the ute was on had a give way sign. Brevet Sergeant Jonathon Tinsley 105 The statement of Brevet Sergeant Jonathon Tinsley date 29 January 2024 was tendered by consent on the basis that it contained the evidence he would have given if called: Exhibit P14. -- 23 of 61 -- [2026] SADC 93 22 106 In summary, the evidence Brevet Sergeant Tinsley would have given is as follows: 1. On Monday 18 December 2023, at approximately 3.27pm he was advised by police communications that a serious vehicle collision had occurred at the intersection of Steelton Road and Main Road 45 at Steelton. 2. He arrived on scene at approximately 3.44pm. The collision scene was approximately nine kilometres north of the township of Marrabel and the crash had occurred on the southern-eastern side of the intersection of Steelton Road and Main Road 45. He could see that the collision involved a fawn Toyota 4WD that had flipped onto its side and a blue Mazda sedan. 3. Brevet Sergeant Tinsley activated his body worn camera at 3.45pm. 4. Main Road 45 at the site of the collision extended generally north and south and was straight and level in design and constructed of bitumen which was in good condition. Steelton Road at the collision site extended generally east and west, was straight and had a slight gradient heading east and was constructed of gravel and dirt. At the intersection of Steelton Road with Main Road 45 there was a give way sign posted for traffic travelling along Steelton Road and was clearly visible for eastbound traffic. At the time he attended, the weather was overcast and the road was dry. 5. He observed that the driver and passenger of the Mazda were still in their vehicle and members of the public were trying to assist. He advised them to leave the driver and passenger in the vehicle until paramedics arrived. 6. He approached a male on the north-eastern corner of the intersection of Steelton Road and Main Road 45. He was wearing a yellow work shirt and had blood stains running down his face onto his T-shirt. He said he was the driver of the Toyota 4WD and confirmed he did not have any apparent serious injuries. Brevet Sergeant Tinsley requested his licence but he said he could not find it as he did not have his wallet. He gave Brevet Sergeant Tinsley his licence number. Checks on the driver’s licence revealed his details to be Thomas James Busch, date of birth 28 November 1995. 7. The Toyota 4WD had come to a rest on the south-eastern side of Main Road 45. It had flipped onto the driver’s side and landed in a field. The rear tray had become detached from the main cabin. There was significant damage to the left-hand side of the vehicle. 8. The blue Mazda sedan had come to a rest on the south-eastern side of Main Road 45 and was on the verge of the road, just in front of a field and some fencing. The vehicle had significant front-end damage. 9. While awaiting the arrival of the paramedics, Brevet Sergeant Tinsley spoke to the driver of the vehicle directly behind the Mazda, Michael John Kelly who provided his details and an account of the evidence. He also obtained Nicola Kelly’s details. 10. When paramedics arrived, the initial assessment was that there were no life-threatening injuries. 11. At about 4.00pm, Brevet Sergeant Tinsley approached the accused and obtained a version of events which was recorded on his body worn camera. 12. At about 4.43pm, after the passenger, Marilyn Jean Smith was extracted from the car, he was advised by the attending doctor, that due to her age, her injuries were potentially -- 24 of 61 -- [2026] SADC 93 23 life threatening. While paramedics were treating her at the scene, her lung collapsed and she went into cardiac arrest. She was revived at the scene and then airlifted to the Royal Adelaide Hospital. 13. At about 4.53pm, Brevet Sergeant Tinsley provided an update to COMCEN and then established a Police Forward Command and asked for Major Crash Investigation Section to be advised. He put roadblocks in place to close Main Road 45 and members of the CFS performed traffic control. He provided COMCEN with the registration numbers of both vehicles. 14. The accused was taken via ambulance to the Lyell McEwin Hospital for assessment. At 5.44pm, Brevet Sergeant Tinsley sent a request via COMCEN for a police officer to attend and take a blood sample from the accused. 15. At around 6.41pm, Brevet Sergeant Guest and Brevet Sergeant Lisa Pytlik arrived on scene. He briefed them on the situation. At 8.20pm he organised for exhibit tows of both vehicles. 16. Around 9.13pm the investigators from Major Crash left the scene. He stayed on-scene while the vehicles were loaded onto the tow-trucks. They were then towed to Ottoway. 17. At 11.24pm he closed down Forward Command and returned to Riverton to log off. 107 An edited clip from Brevet Sergeant Tinsley’s body worn camera footage was tendered: Exhibit P15. The transcript was marked for identification: MFI P15A. P15 contained footage of the accused in an ambulance and recorded the conversation he had with Brevet Sergeant Tinsley. That conversation was as follows: BS Tinsley: Alright, let me hear what happened in your version of events, mate? What were you doing? Accused: I pulled out on them. BS Tinsley: Yep, so you were travelling? Accused: Uh, so I was coming from. BS Tinsley: You were travelling east on Steelton? Accused: Yep, heading that way. BS Tinsley: How fast do you reckon you were going? Accused: Uh, like slowed down for the corner and like. BS Tinsley: So about 80? Accused: If that. BS Tinsley: So you were travelling east on Steelton doing what 60? Accused: Yeah. -- 25 of 61 -- [2026] SADC 93 24 BS Tinsley: Yep, then what happened. Accused: Yeah, I just, I saw one car that was yeah back down the road and then thought, all right I’m good to go and I just didn’t see the car in front. BS Tinsley: Yep, so you just crossed over Main Road? Accused: Yep, and literally I just didn’t see them. BS Tinsley: Crossed over Main Road and had a T-bone with the other unit? Accused: Yep. Agreed facts 108 Pursuant to section 34 of the Evidence Act 1929 (SA), the following facts were admitted by the accused as proved by the evidence, without the prosecution being required to lead the evidence which established those facts. Vehicles 1. The accused’s father, David John Busch, was the registered owner of the Toyota Landcruiser, South Australian registration S600 CUX (“Landcruiser”). 2. On 18 December 2023, the accused was the driver of the Landcruiser at the time of the collision. 3. On 18 December 2023, John Smith was the registered owner of the Mazda sedan, South Australia registration S667 CCW (“Mazda”). 4. On 18 December 2023, the accused held a South Australian driver’s license, license number DC7100 5. On 18 December 2023, John Smith held a South Australian driver’s license, license number 813858. Vehicle Examinations 6. Troy Sage is a Vehicle Examiner attached to the Major Crash Investigation Section of SAPol. 7. On 4 January 2024 he conducted an examination of the Landcruiser. 8. Sage formed the opinion that the Landcruiser being driven by the accused had been in satisfactory condition prior to the collision and could find nothing mechanically wrong with the vehicle that would have contributed towards or caused the collision. 9. On 9 January 2024 he conducted an examination of the Mazda. 10. Sage formed the opinion that the Mazda being driven by John Smith had been in satisfactory condition prior to the collision and could find nothing mechanically wrong with the vehicle that would have contributed towards or caused the collision. -- 26 of 61 -- [2026] SADC 93 25 11. The headlight switch of the Mazda was in the off position. 12. The accused does not dispute Sage’s opinions. Toxicology Results 13. Toxicology analysis on a sample of blood taken from the accused after the collision detected no alcohol or drugs in his blood. Cause of Death and Injuries 14. John Smith suffered the following injuries in the collision: A laceration over his left eyebrow and to his right forearm, a sinus wall fracture, rib fracture, a small lung contusion, and pain in his shoulder and right lower chest. 15. Marilyn Smith died as a result of acute trauma and frailty on 22 December 2023. 16. The acute trauma was caused by the collision. Field of vision of the human eye and dash-cam 17. Normal human binocular vision has a horizontal field of view of between 160 degrees and 200 degrees, on the basis that both eyes are open, healthy, and without abnormality. 18. The forward facing camera of a DR750G Pro records a horizontal viewing angle of 120 degrees, a vertical viewing angle of 64 degrees, and a diagonal viewing angle of 142 degrees. Miscellaneous 19. The data attribution date for the Google Earth satellite images the subject of exhibit P2 is 16 April 2026. The defence case 109 The accused called one witness, Dr Robert William Gerard Anderson. In opening the defence case, Mr Culshaw said that Dr Anderson was an expert in crash reconstruction and he would give evidence of the analysis of the dashcam footage, his attendance at Ottoway compound to examine the Toyota Landcruiser and his observations of the line of sight from the driver’s eye position as opposed to the position of the dashcam. His evidence would establish that it was plausible that the Mazda was obscured from the view of the accused by the A-pillar at some or all material times in the time period captured by the dashcam footage. 110 Mr Tate, for the prosecution, foreshadowed an objection to the admissibility of the evidence of Dr Anderson. It was agreed by counsel that I would receive that evidence de bene esse and rule on its admissibility in the course of my reasons for verdict. Dr Robert William Gerard Anderson 111 Dr Anderson had the following qualifications and training: -- 27 of 61 -- [2026] SADC 93 26 1. Bachelor of Mechanical Engineering (1991). 2. Joined University of Adelaide Road Accident Research Unit (1993) appointed Deputy Director (1999). Road Accident Research Unit later became the Centre for Automotive Safety Research. 3. Awarded a PhD in Mechanical Engineering in 1999. His PhD topic was head injury biomechanics. 4. As part of his research at the Centre for Automotive Safety Research he was involved in crash reconstruction. Where relevant, that involved making an assessment of lines of sight. 5. Developed and taught a final year undergraduate engineering course on vehicle safety and crash mechanics at the University of Adelaide. 6. Commenced consulting and preparing expert reports in 2009. 7. Left academia and commenced consulting full time in 2014 at Anderson Hall in the field of crash reconstruction and injury biomechanics. 8. Analysis and modelling of lines of sight has been part of his work during his time consulting. 9. He has provided expert reports for use in court proceedings. 10. He has given evidence in courts, including the District Court. 11. He has authored academic articles prior to commencing consulting with Anderson Hall. 85 112 Dr Anderson had been asked to provide an opinion regarding the collision. Initially he was asked to conduct a review. He was given dashcam footage and statements from police officers involved in the investigation. From the material he was provided he undertook some 3D modelling to determine the difference between the view of the camera and the view of the driver. He did this because the other vehicle could be seen in the dashcam footage. He did not rely upon the 3D modelling to form his ultimate opinion. This modelling was a preliminary exploration of the difference in view there might have been between the driver’s and the camera’s position. When he did this, he simulated the view from the driver’s seat and noticed that it was falling behind the A-pillar.86 113 This observation provided a theory to explore in further investigations. He was not looking for this at the outset but it ‘more or less fell out of the investigation’.87 He formed the following opinion after he examined the Toyota Landcruiser: The opinion was that it was plausible that the – at various times before the collision, that the other vehicle was, in terms of line of sight, situated behind the A-pillar of the Land 85 T 158-160. 86 T 161. 87 T 161-162. -- 28 of 61 -- [2026] SADC 93 27 Cruiser. And, given what we can see in the dashcam, that the – that position was on a sort of a constant bearing from the driver’s position, so that potentially could have extended for a reasonable period of time.88 114 On 12 July 2024, Dr Anderson attended the vehicle compound at Ottoway. He went with his assistant, Dr Jeff Dutschke. Upon arrival, he was provided with the dashcam footage by Brevet Sergeant Guest. Dr Anderson was shown P7 and said that this photograph showed the inside of the Landcruiser. The image showed two stripes of double-sided tape which matched the footprint of the mounting bracket of the camera. Dr Anderson said the small black dots behind the rear vision mirror and extending across the top of the windscreen were ‘frits’ and their purpose was to strengthen the bond between the windscreen and frame, control temperature gradients for thermal stability to prevent windscreen cracking and provide some tinting.89 115 When he remounted the camera, the frits assisted in realigning the camera to match what could be seen in the dashcam footage. He put the footprint of the bracket in the same position and remounted the camera. The dashcam did not appear to be damaged in any way in the collision. He adjusted the camera to match what could be seen in the footage in terms of what could be seen around the windscreen frame – the frits and the mounting point for the rear-vision mirror. Once mounted and running he connected it to his mobile device, and he could see on his mobile device what the camera could see. When he undertook the task of mounting the camera to replicate the angle of the dashcam footage from the collision he was using the frits and mounting point. 90 116 Once Dr Anderson put the dashcam in the position he was happy with, he then sat in the driver’s seat with his mobile device and directed Mr Dutschke to place cones on the ground forward and left of the vehicle moving them until the cones were the defining edge of what could be seen specifically along the edge of the bracket which was the black obstruction in the bottom left of the dashcam footage. He then asked Mr Dutschke to stand as far away as possible and move until Dr Anderson could no longer see him for the A-pillar. Mr Dutschke was standing about twenty to thirty metres away; they were limited by the size of the compound.91 117 A series of photographs were tendered representing photographs which were used or created by Dr Anderson: Exhibit D18. Photograph 1 was a still frame from the dashcam footage with a red and yellow circle on the left-hand side.92 The circles signified the position of the Mazda. Photograph 2 was an image from the dashcam at Ottoway showing the cones and Dr Dutschke in a fluorescent yellow jacket. This was taken after Dr Anderson had asked Dr Dutschke to stand behind the A-pillar.93 88 T 162, 17-24. 89 T 163-164. 90 T 163-165. 91 T 166-167. 92 T 168. 93 T 169. -- 29 of 61 -- [2026] SADC 93 28 When this image was taken Dr Anderson was sitting in the driver’s seat and he could not see Dr Dutschke. Photograph 3 has a yellow oval shape to highlight Dr Dutschke’s position. Photograph 4 was an overlay of the images in photograph 1 and 3. The less translucent image was the still from the dashcam footage.94 A yellow circle in photograph 4 indicated the position of the Mazda.95 118 Dr Anderson explained that the purpose of the overlay was to align the two images specifically in the top left half of the image and the rear-vision mirror bracket.96 119 Photograph 5 was taken when Dr Anderson was in the driver’s seat of the Toyota Landcruiser. Dr Dutschke was standing in a position where he could not be seen for the A-pillar. The letter ‘A’ in photograph 5 represents Dr Dutschke’s position and ‘C’ was Dr Anderson’s best estimate of where the Mazda was in the overlay image. The vertical line marked ‘B’ was the approximate edge of the dashcam field of view. That was a general line to represent the field of view from the dashcam when mounted at Ottoway and the dashcam from the collision. The positions were not intended to be precise but to show generally where Dr Dutschke was standing. He was able to determine where to place ‘C’ by reference to ‘A’ and the overlay image in photograph 4.97 He said the position of ‘C’ and ‘A’ were estimates. However, he was confident that what was in each of the circles marked ‘C’ and ‘A’ were obscured by the A-pillar. The vertical line ‘B’ was placed by using the edge of the field of view of the dashcam footage from the collision.98 120 Photograph 6 was a photograph taken by Dr Dutschke showing Dr Anderson sitting in the car when he made the observation of what could be seen past or occluded by the A-pillar. When he took photograph 5, he tried to reproduce his field of view so that the cones were occupying the same relative position to the interior. He placed his mobile phone camera midpoint between his eyes to reproduce the view and leant back a bit. Thus, where his eyes are in photograph 6 was where the camera was when photograph 5 was taken.99 121 Dr Anderson said he could not conclusively say what the accused did or did not see in the lead-up to the collision. He was able to proffer an opinion about the line of sight of the accused driving the Landcruiser to the Mazda at the time of photograph 1 in D18:100 A If I can answer the question this way, I think what I can say with a high degree of certainty is that there is a region of the road that would have been blocked from view for a driver in that position looking to the left. That is a physical fact, because of the 94 T 170. 95 T 171. 96 T 172-173. 97 T 175. 98 T 175-176. 99 T 176-177. 100 T 177. -- 30 of 61 -- [2026] SADC 93 29 presence of the A-pillar. The images here show that the Mazda was in the region – plausibly in the region that was blocked by the A-pillar. Q So is this a correct summary: that it’s plausible that the Mazda was blocked by the A-pillar but you can’t be certain of that. A Yes.101 122 Dr Anderson was asked about the limitations in the work that he performed. He said that the precise portion of the road that is blocked by the A-pillar will depend on the position of the driver’s head and whether, for example, the driver leans forward or back. However, wherever the driver’s head is position there will still be a portion of the line of sight obscured. Dr Anderson did not know where the accused’s head was positioned at the relevant time. That was one of the reasons that he could not proffer an opinion with any degree of certainty about what the accused did or did not see.102 123 Another limitation was the fact that the Landcruiser had sustained significant crash damage. The body of the vehicle was twisted, the front left corner was sitting very low relative to the ground and the A-pillar had deformed.103 The deformation of the A-pillar resulting in it being more vertical than it would have been prior to the crash, affecting the geometry of the exercise he undertook. However, he said that even if some adjustment was made for the angle, the general conclusion of plausibility of occlusion is maintained.104 This was because the more likely deformation was at the base of the A-pillar and the region being considered was near the top, thus less affected by the angle.105 124 Dr Anderson explained that the main reason why he did not have a higher degree of confidence than a conclusion of plausibility was because he did not really know with precision where the accused’s position was in the vehicle relative to which region of the road was being occluded.106 125 Dr Anderson said that the dashcam footage showed that just before the collision the Mazda can be seen more or less in the same position in the field of view of the dashcam. That indicated to him that it was on a constant bearing.107 He was asked if the consistency of the bearing of the Mazda permitted him to give an opinion about whether it is plausible that the occlusion existed throughout the period of the dashcam footage: 101 T 179, 20-31. 102 T 179-180. 103 T 180. 104 T 181. 105 T 182. 106 T 182-183. 107 T 183. -- 31 of 61 -- [2026] SADC 93 30 I think that the vehicle would have occupied the same region in the field of view over the duration of the footage. The occlusion over the whole period will depend on the position of the driver over that period as well.108 126 Dr Anderson was asked to assume that the Mazda was occluded from the field of view of accused at the time of still frame in photograph 1 of D18 and the accused sat still and his head stayed in the same position from the start to the end of the dashcam footage and asked if the plausibility of the Mazda being occluded by the A-pillar throughout the whole period of the dashcam footage: Yes, with one qualification: until the physical separation between the two vehicles was such that the Mazda appeared – could have appeared physically larger and it was – technically, I guess, it’s the angle subtended by the front and the back of the vehicle started to exceed the width of the A-pillar.109 127 I asked Dr Anderson if he could say at which point the Mazda would not have been occluded and he said that although he did not specifically analyse that question, it would probably have been in the last few seconds. However, it was difficult for him to say exactly when.110 128 Dr Anderson explained that he went back and checked his work and after the overlay process he placed a red circle on photograph 5 of D18 to differentiate it from the yellow circle. This recheck did not make any difference to his ultimate conclusions.111 Cross-examination 129 Dr Anderson explained that for a vehicle to be on a constant bearing the rate at which the two vehicles are closing on the point of collision is fixed more or less relative to the heading, in this case, of the Toyota Landcruiser. This was based on a direct observation of what could be seen in the dashcam. The Mazda is consistently at the edge of the frame, and the edge of the frame is sitting on a specific bearing from the way the camera was pointing. The actual speed of the Mazda was irrelevant to the observation that it was in a constant position in the frame.112 130 Dr Anderson said that the observation that the Mazda was in the same position was something that anyone looking at the footage could discern, and that opinion was not an expert one. However, he said he used his expertise to conclude from the constant angle of the Mazda that it had a constant bearing.113 108 T 184, 7-11. 109 T 184, 26-31. 110 T 185. 111 T 185-186. 112 T 188. 113 T 189. -- 32 of 61 -- [2026] SADC 93 31 131 If Dr Anderson did not have access to the dashcam footage, without information about the motion of the Mazda, he would not be able to give an opinion about the bearing or constancy of the bearing of the Mazda.114 132 Dr Anderson agreed that one of the limitations on his opinion was that he could not replicate the position of the dashcam perfectly but said the main limitation was not knowing the precise position of the accused.115 133 Dr Anderson was taken to photograph 1 of D18 and asked to compare it to photograph 2 of D18 and agreed that there was a difference in the layout of the frits shown in each photograph.116 This showed that he could not perfectly replicate the position of the dashcam.117 134 Dr Anderson said the windscreen cracks did not have any impact upon his opinion. He did not make any note of any displacement of the window. Dr Anderson said the significant damage to the bottom left part of the windscreen did not have any effect on the position of the dashcam relative to the part of the windscreen to which he was trying to align it.118 135 Dr Anderson agreed that the deformity to the A-pillar would have an impact on the positioning of the windscreen. However, he said the position of the dashcam at the time of the collision was only relative to the local region of the windscreen.119 136 Dr Anderson agreed that a limitation on where Dr Dutschke was standing was that he could not stand as far from the vehicle as the Mazda was at the scene and therefore there is an effect when shifting angles of relative position in the visual field. Putting him as far away as possible was a way of trying to minimise that effect. The actual distance of the Mazda from the Landcruiser was much more than the distance from the Landcruiser and Dr Dutschke in D18.120 However, he said there would have been a point prior to the collision where that probably did represent the distance, but it would have been closer to the intersection.121 137 When asked whether the difference in size of Dr Dutschke and the Mazda was a factor to consider in relation to the plausibility of the Mazda being obscured by the A-pillar, Dr Anderson said: Look, it is my opinion that the region occupied by the vehicle at certain times before the collision would have been considerably smaller than the width of the included area. There certainly would be times – I mean, if we look at the image on p.1 of D18, we don’t see the full vehicle but it’s clearly a small object in the distance at that point. And it is my view 114 T 191. 115 T 193. 116 T 195-196. 117 T 197. 118 T 197-198. 119 T 199. 120 T 200. 121 T 201. -- 33 of 61 -- [2026] SADC 93 32 that seeing the width, I guess the subtended angle of the width of the A-pillar, that the size of the vehicle, the visual size was somewhat smaller than that width…of the A-pillar.122 138 Dr Anderson did not determine when the width of the vehicle would exceed the A-pillar from the driver’s point of view.123 139 Dr Anderson said that if the position of the Mazda had moved from left to right across the image plain in the dashcam footage his conclusion would be that the bearing was decreasing and a reason for that might be that there was some relative change in the speed to bring it forward.124 140 Dr Anderson said that any potential changes in speed or steering were irrelevant because the footage told him that the Mazda was occupying the same part of the visual field for the entire period of the footage.125 141 Dr Anderson agreed that there was damage to the A-pillar and there would have been damage to the position and shape of the cabin, but he said that was difficult to assess.126 He agreed that the front left tyre was deflated and the vehicle was slightly lower in that corner. However, he said that would not affect the angle of the A-pillar for the driver because if the vehicle rotated or dropped then the driver rotates position and drops with it and the angles do not change. What is more important is if the A-pillar has moved relative to the driver’s position. The deformation of the vehicle is important, but probably not the tilt.127 142 Dr Anderson agreed that he had noted that the driver’s seat was twisted in the cabin.128 He further noted that he tried to approximate the driver’s position using the steering wheel as a guide. He agreed that this was a limitation that should be borne in mind.129 143 Dr Anderson agreed that he approximated the position of C using the relatively position of the Mazda in the overlay. If the vehicle had been undamaged and he asked Dr Dutschke to stand behind the A-pillar he would possibly have been in a different position because the A-pillar would not have been twisted, it would have been in a different location in his field of view.130 144 It was put to Dr Anderson that the deformity in the A-pillar had significant impact on his opinion that it may have obstructed the view of the Mazda. He said: I wouldn’t describe it as significant in so far as the level of confidence I gave my opinion. Sorry, that’s slightly awkward, but in the sense that I – it remains my opinion that the – that the A-pillar was occluding a section of the road and that the Mazda was occupying a similar 122 T 201, 38; T 202, 1-9, T 203, 3. 123 T 204. 124 T 207. 125 T 208. 126 T 211. 127 T 214. 128 T 215. 129 T 216-217. 130 T 219-221. -- 34 of 61 -- [2026] SADC 93 33 part of the visual field and it’s – therefore, the plausibility is maintained. I don’t – so this – I think you used the word ‘significant’, I’m not sure I’d agree with that characterisation.131 145 Dr Anderson agreed that the potential difference in height between himself and the accused was a relevant thing to keep in mind.132 If a driver was moving around, then their field of view will change and the region of the road that is obstructed relative to their position would change. Dr Anderson said he was able to change his view by leaning forwards to see Dr Dutschke.133 146 Eventually Dr Anderson explained that he factored in the various limitations he agreed existed in arriving at the plausibility opinion. He said it was plausible that the Mazda was blocked at times. He used the word plausible deliberately to convey the implied limitation as to how general he could make the statement at all times in all circumstances that the Mazda would not be seen.134 If there had not been so many limitations, that would affect the degree of confidence in which he would express his opinion; it might change from plausible to possible, probable or a likelihood.135 Re-examination 147 Dr Anderson said his evidence about the bearing of the Mazda relative to the Landcruiser was based only on the appearance of the Mazda in the dashcam and not the speed of either vehicle. He agreed that anyone can see where the Mazda is in the dashcam and years of study are not required to see that.136 However the consistency of the position of the Mazda indicates that it is plausible that the Mazda was occupying the same part of the visual field of the driver at all times relative to the cabin. Therefore, given that the vehicle was occupying the same general region as the A-pillar was occupying in that visual field, it was plausible that it was occluded by the A-pillar and could have been occluded for some period of time.137 148 The purpose of the overlay of the two images in photograph 4 was to bring into alignment the views of the camera at the time of the collision and at the time of his attendance with reference to the frits at the top left corner and the rear vision mount at the lower left corner.138 149 In relation to Dr Anderson’s evidence that he was trying to work out the angle at which he could not see Dr Dutshcke he was asked whether, if an object is at the same angle but further away, would it be equally likely that it could be seen and he said yes.139 131 T 221, 8-16. 132 T 221. 133 T 222. 134 T 223 135 T 224. 136 T 227. 137 T 227-228. 138 T 229. 139 T 229. -- 35 of 61 -- [2026] SADC 93 34 Challenge to the admissibility of evidence of Dr Anderson 150 The principal objection to the evidence of Dr Anderson was that the process he undertook was not one requiring any expertise and/or the opinion he expressed went to the ultimate issue in dispute at trial. If that objection was upheld, then his evidence was not relevant. 151 Mr Tate made a submission that Dr Anderson’s evidence that the Mazda was on a constant bearing did not rely upon his expertise. He said I was no less equipped than Dr Anderson to make that finding. However, Mr Tate then submitted that it was not open for me to make that finding because the evidence did not enable me to. Mr Tate conceded that he did not challenge Dr Anderson’s conclusion, rather he challenged the suggestion that his expertise permitted him to draw that conclusion. 152 Mr Tate said that the question of the driver’s line of sight was something that I, as the trier of fact, was capable understanding. After referring me to R v Bonython (1984) 38 SASR 45, R v Runjanjic (1991) 56 SASR 114 and Lang v The Queen (2003) 278 CLR 323 Mr Tate contended that Dr Anderson’s evidence was dressed up as expert evidence. Mr Tate argued that I could make findings of fact regarding whether the Mazda could or could not be seen based on the evidence led at trial. However, Mr Tate conceded that I could not consider the reasonable possibility that the Mazda was obscured for a portion of the time by the A-pillar without an evidentiary basis for it. Mr Tate rejected the suggestion that Dr Anderson’s evidence provided the evidentiary basis for such a finding because of the limitations he identified. 153 Mr Culshaw referred to the joint judgment of Kiefel CJ and Gageler J in Lang v The Queen140in support of a submission that most of what Dr Anderson said was admissible because it was evidence of events and process in which he was involved. As their Honours observed, ‘expert evidence need not be opinion evidence’. However, opinion evidence can only be expert evidence (subject to limited exceptions). The opinion of an expert has probative value only if and to the extent that the opinion can assist the tribunal of fact in forming its own opinion as to the inferences to be drawn from the evidence. 154 In applying those principles, Mr Culshaw said that while there were aspects of the reconstruction exercise that relied upon observations that a lay person can make (for example that the Mazda was on a constant bearing) the expertise lay in the application of those observations in creating a reconstruction upon which an opinion could be expressed regarding the possible lines of sight for the driver. Dr Anderson’s opinion as the plausibility of the Mazda being obscured by the A-pillar relied upon a finding that the bearing of the Mazda was constant throughout the period of the dashcam footage, together with the still frame from the dashcam 140 [4]. -- 36 of 61 -- [2026] SADC 93 35 taken at Ottoway and the photograph taken by Dr Anderson from inside the Land Cruiser. 155 It was that body of evidence upon which Dr Anderson relied to opine that the consistency of the position of the Mazda indicated that it was plausible that the Mazda was occupying the same part of the visual field of the driver at all times relative to the cabin. Therefore, given that the vehicle was occupying the same general region as the A-pillar was occupying in that visual field, it was plausible that it was occluded by the A-pillar and could have been occluded for some period of time. 156 The opinion was in two steps: 1. Based on Dr Anderson’s reconstruction, the steps of which are demonstrated in the images comprising D18, it is plausible that the Mazda was obscured from the vision of the driver by the passenger side A-pillar at the time of the still frame of the dashcam footage that is on page 1 of D18. 2. Adopting that as a starting point, as a result of the constant bearing of the Mazda from the Landcruiser that can be seen in the dashcam footage, it is plausible that the Mazda remained so obscured up until a time that it was sufficiently close that its visible width to the driver was wider than the A-pillar. 157 This opinion evidence, if accepted, transforms a theoretical possibility into a plausibility. In other words, the probative value of his evidence lies in the extent to which his opinion might assist me to draw inferences from other evidence that has been adduced as to the possibility of an obstruction to the accused’s view of the Mazda, capable of explaining why he did not see it. 158 Mr Culshaw referred me the joint judgment of Kiefel CJ and Gageler J in Lang v The Queen at [9] where their Honours said that it did not follow that evidence of an opinion of an expert is unavailable to assist the tribunal of fact merely because the tribunal of fact, whether a judge or a jury, could be expected in the absence of that expert evidence to work out their own explanation for events and behaviour making use of nothing more than the common knowledge and experience that can be attributed to them. However, it remains a condition of admissibility of evidence of the opinion of an expert at common law that the opinion be demonstrated to be based on specialised knowledge or experience of the expert that is beyond the common knowledge and experience attributable to the tribunal of fact. 159 Mr Culshaw said that the limitations factored into the opinion of Dr Anderson were matters going to weight and not admissibility. Dr Anderson was an impressive witness who made proper and considered concessions. His evidence provides an explanation for the accused’s failure to see the Mazda that fits most comfortably with the rest of the evidence in the case. The evidence permits a finding that the accused did look to the left (because he saw the Tiguan) and therefore begs the question as to why he did not see the Mazda. Where there is another rational explanation, such as the hypothesis proffered by Dr Anderson, that -- 37 of 61 -- [2026] SADC 93 36 explanation is more likely than the accused having looked to the left but inexplicably failing to see the Mazda. The evidence of Dr Anderson is admissible 160 For the reasons, that follow, I am satisfied that the evidence of Dr Anderson is admissible. The weight to be attached to it is another matter which will depend upon the findings of fact ultimately made. 161 Noting that there was no challenge to his expertise or qualifications, I find that Dr Anderson is an expert in the field of accident reconstruction, which includes the analysis and modelling of lines of sight. 162 I have had regard to the authorities dealing with the admissibility of expert evidence. In Lang v The Queen [2023] HCA 29, Kiefel CJ and Gageler J elaborated on the common law principles bearing on the admissibility of expert evidence: Expert evidence need not be opinion evidence. Evidence given by an expert sometimes involves nothing more than imparting expert knowledge and sometimes involves nothing more than giving a technical description of events and processes in which the expert was involved… Subject to limited exceptions, however, opinion evidence can only be expert evidence. The reason lies in the nature of an opinion and in the nature of the curial process. An opinion is an inference drawn from observed and communicable data. Within the curial process, data that has been observed is communicated to a court through the adducing of evidence. Drawing inferences from that evidence to make findings of fact is the function of the tribunal of fact. The tribunal of fact, whether a judge or a jury, can be expected to perform that fact-finding function forming their own opinion as to the inferences to be drawn from the evidence based on their own common knowledge and experience. Another person cannot usurp the fact-finding function of the tribunal of fact, and an opinion of another person based on nothing more than the common knowledge and experience of that person cannot assist the tribunal in performing that function. The tribunal of fact might at most be assisted in the performances of the function by being apprised of the opinion of another person – an expert – based on that person’s specialised knowledge. The probative value of evidence of an opinion that is based on specialised knowledge or experience then lies in the extent, if any, to which the opinion has the potential to assist the tribunal of fact in the process of drawing the requisite inferences for itself … This Court has emphasised that “it does not follow that, because a lay witness can describe events and behaviour, expert evidence is unavailable to explain those events and that behaviour”. Nor does it follow that evidence of the opinion of an expert is unavailable to assist the tribunal of fact merely because the tribunal of fact, whether a judge or a jury, could be expected in the absence of that expert evidence to work out their own explanation for events and behaviour making use of nothing more than the common knowledge and experience that can be attributed to them.141 163 It nevertheless remains a condition of the admissibility of evidence of the opinion of an expert at common law that the opinion be demonstrated to be based 141 [5], [6], [9] footnotes omitted. -- 38 of 61 -- [2026] SADC 93 37 on specialised knowledge or experience of the expert that is beyond the knowledge and experience attributable to the tribunal of fact. Only then can the opinion of the expert assist the tribunal of fact to form the requisite opinion of its own as to the inferences to be drawn from the evidence to make findings about disputed facts if the tribunal of fact is persuaded to accept and act upon the opinion. 164 The inference drawn by the expert which constitutes the opinion must be supported by reasoning on the part of the expert sufficient to demonstrate that the opinion is the product of the application of the specialised knowledge of the expert to the facts which the expert has observed or assumed. 165 It is self-evident that not all of Dr Anderson’s evidence was expert opinion evidence. Much of it related to the reconstruction exercise he performed during which he made observations that a lay person could make. For example, Dr Anderson’s evidence that the Mazda was on a constant bearing throughout the period captured in the dashcam footage is a conclusion open to a lay person viewing the footage. Similarly, Dr Anderson’s evidence that the A-pillar on the passenger side of the Landcruiser obstructs the view of the driver when looking in that direction is a conclusion open to a lay person given photographs of the view from the driver’s seat of the Landcruiser. That does not, per se, render that evidence inadmissible. It was simply evidence of the processes or methodology he employed in arriving at his opinion. 166 Whilst the tribunal of fact could make the observations or draw the inferences referred to above, it cannot undertake the process of reconstruction performed by Dr Anderson, using his specialised knowledge and expertise. Dr Anderson’s reconstruction was performed by watching the dashcam footage, attending Ottoway compound and placing his assistant in an area where he could not be seen but for the A-pillar, and then, using a computer program, overlaying a photograph of that with the still image from the dashcam shown on page 1 of D18 to form the evidentiary basis for a conclusion that it was plausible that the A-pillar had obscured the Mazda from the view of the driver at that time. 167 Dr Anderson’s observation that the Mazda was on a constant bearing throughout the dashcam footage was then the evidentiary basis for his opinion that it was plausible that the Mazda was occluded from view by the A-pillar until such time as the width of the Mazda exceeded the width of the A-pillar. That opinion was based on his specialised knowledge and experience in accident reconstruction, involving assessments of lines of sight of a driver. 168 In assessing the weight to be attached to that opinion in arriving at any finding of fact regarding the line of sight of the accused, it will be necessary to consider the following limitations identified by Dr Anderson: 1. The precise portion of the road that will be blocked from the driver’s line of sight by the A-pillar will vary depending on the position of the driver’s head. 2. The deformation of the A-pillar as a result of crash damage. -- 39 of 61 -- [2026] SADC 93 38 3. The sitting position of the driver or any change in the sitting position is not known and therefore the region of the road that was occluded at any given time is not known. 4. Whether the exact position of the dashcam on the day of the collision was replicated by Dr Anderson when he remounted it in the Landcruiser. 5. Dr Anderson could not place his assistant as far from the Landcruiser as the Mazda was at the scene. 6. Dr Anderson had not undertaken the process of determining when the width of the Mazda would have exceeded the width of the A-pillar. 7. The deflation of the front left tyre. 8. The twisting of the driver’s seat requiring Dr Anderson to replicate the position of the driver by using the steering wheel as a guide. 9. The potential difference in height between Dr Anderson and the accused. Closing submissions 169 Both counsel filed helpful written submissions and supplemented them orally. Prosecution 170 Mr Tate commenced his submissions by noting that the facts were largely uncontested or otherwise agreed. In summary, there was no dispute that the accused failed to give way at the intersection of Steelton Road and Main Road 45 causing the death of Ms Smith and harm to Mr Smith. The consumption of alcohol or drugs did not contribute to or cause the collision. Mechanical failure or fault did not cause or contribute to the collision. It was not the prosecution case that the accused was travelling too fast. The speed of his vehicle was only relevant to the drawing of an inference that he had not seen the Mazda. 171 Mr Tate accepted that it was open to infer that it was cloudy at the time of the collision. It was also open to find that the Tiguan was white and towing a trailer and at the time it stopped the headlights were not on. It was also open for me to find that Mr Smith did not see the accused’s vehicle at any time prior to the collision. Mr Tate did not ask me to reject the accused’s account in his record of interview that he did not see the Mazda but did see the Tiguan. It was also open for me to find that the view of the road as depicted on the dashcam was not the view available to the accused and there was no evidence as to whether the size of objects in the dashcam footage replicated what could be seen by the human eye. It was an agreed fact that the dashcam had a narrower field of view than the human eye. 172 Mr Tate said that the evidence established that as the accused approached the intersection, the accused failed to maintain the standard of observation that a competent and prudent driver was required to exercise. That failure was not confined to the point of impact; it was continuous throughout his approach to the -- 40 of 61 -- [2026] SADC 93 39 intersection controlled by the give-way sign, and he failed to see the Mazda which, Mr Tate said, ‘was plainly there to be seen’.142 173 Mr Tate argued that the prosecution had proved beyond a reasonable doubt that the accused’s driving was objectively dangerous as a result of a grossly defective lookout. It was said that: The accused either failed to look or looked so ineffectively that he failed to see what was plainly there to be seen; being the Mazda vehicle driven by Mr Smith. On the prosecution case, in the circumstances, the accused ought to have seen the Mazda given the circumstances he was in before he entered the intersection. The accused was afforded ample opportunity to observe the Mazda before going through the intersection giving consideration to the following: a) The 500 metre straight, downhill slope of Steelton Road offering a largely clear view to both the northbound and southbound Main Road 45; b) The time it took for him to drive down Steelton Road with the opportunity to make observations from the abovementioned view (between 30 and 34 seconds based on the calculations from the speeds recorded in the airbag data in the 5 seconds prior to the collision); c) His ability to move his positioning within the vehicle to overcome obstructions that are typically expected to be experienced by a driver, such as an A-pillar or bushes on the side of the road; d) The give way sign and his knowledge and familiarity thereof; e) His general familiarity with the area and the route upon which he was driving. 174 After reviewing the seminal authorities dealing with the distinction between driving in a manner dangerous and driving without due care, including McBride v The Queen,143 R v Coventry,144 Jiminez v The Queen,145Kamleh v The Queen146 and R v Hendriksen147 Mr Tate said the accused’s manner of driving could not be characterised as a momentary lapse or inadvertence. He had every opportunity to observe, think assess and respond appropriately. He was familiar with the area and knew he was obliged to give way. Even if a finding was made that the Mazda was obscured by the A-pillar for some or all of the time, that did not relieve the accused of the obligation to ensure that it was safe to enter the intersection. He should have realised his view was obstructed by the bushes or the A-pillar and taken those matters into account by adjusting his position or taking more care to check for oncoming traffic. 175 In summary, Mr Tate said the prosecution had proved beyond a reasonable doubt that the accused’s manner of driving constituted a prolonged failure to 142 Written Submissions of the Prosecution, 13 July 2026, paragraph 7. 143 (1996) 115 CLR 44. 144 (1938) 59 CLR 633. 145 (1992) 173 CLR 572. 146 (1990) 51 A Crim R 435. 147 (2007) 98 SASR 571. -- 41 of 61 -- [2026] SADC 93 40 maintain an effective lookout before entering a controlled intersection in the face of an obvious and foreseeable risk. His manner of driving created a danger well beyond the ordinary risks of the road. His manner of driving was dangerous, and it caused the death of Ms Smith and the harm suffered by Mr Smith. Defence 176 Mr Culshaw referred to the well-known test for driving in a manner dangerous to the public which was applied by the Court of Appeal in R v Donovan [2025] SASCA 7, a case involving a defective lookout. 177 Mr Culshaw said many of the findings of fact to be made were uncontroversial, including: 1. The collision caused the death of Ms Smith and harm to Mr Smith. 2. The accused failed to give way. 3. The accused entered into and continued through the intersection at a speed in the low to mid 50km/h. He depressed the accelerator of his car in the last two seconds before the collision in a manner that in substance did no more than maintain the speed of his car through the intersection. 4. The accused did not see the Mazda, whether in time to react or at all, prior to the collision. 5. The accused did see the car that was following the Mazda on his approach to the intersection. 178 Mr Culshaw said that if a finding was made that the accused looked to the left as he approached the intersection but did not see the Mazda, the Court should determine the least culpable explanation for the accused failing to see the Mazda that is reasonably possible on the evidence and whether, on that explanation, his manner of driving was dangerous. 179 Mr Culshaw argued that the Court should proceed on the basis that it is reasonably possible that the accused looked to his left immediately prior to the Mazda being obscured behind the passenger side A-pillar of the accused’s car. To proceed through the intersection at a moderate speed in those circumstances was not dangerous. 180 In the alternative, on the accused’s account, which should be accepted at least as a reasonable possibility, he did look to his left. It is unlikely that the Mazda was clearly visible, and he inexplicably did not see it. Even if that were the case, his manner of driving involved only the risk to others ordinarily associated with the driving of a motor vehicle, including a failure to exercise due care and attention. 181 Mr Culshaw pointed out the difficult features of the intersection on approach from a westerly direction on Steelton Road. The bushes on the western side of Main Road 45 obstructed the view of Main Road 45 to the left (north). To the right -- 42 of 61 -- [2026] SADC 93 41 (south) there was a rise and fall in Main Road 45 giving a crest effect from the position of the painted give way line. 182 In his oral submissions, Mr Culshaw took me to photograph 21 in P4 as a visual illustration of the substantial obstruction to the view of a driver in the accused’s position at the intersection advisory sign. The obstruction increased upon approach to the intersection, as illustrated in photographs 30 and 34 of P4. The average speed of the Landcruiser in the last five seconds before impact was 54km/h. Accordingly, it would have covered a distance of 75 metres. In those five seconds the view of the Mazda was significantly if not completely obstructed. Support for this is to be found in the evidence of Mr Smith, who could not see the accused’s vehicle only the dust trail, as he approached the intersection. 183 Mr Culshaw emphasised what the accused said in his record of interview about the rise on Main Road 45 to the south on approach to the intersection from Steelton Road. Photographs 45, 46, 49, 50-53 in P4 show the crest and this would have been apparent on the view. There was no evidence, however, of how far the peak of the crest was from the intersection. There was no evidence of whether a drive in the accused’s position could see vehicles approaching from before the crest. Despite the accused mentioning that this was a problem with the intersection, it was not investigated. Accordingly, it was open to find that a prudent driver who knew the intersection well might not come to a near or complete stop in order to comply with the obligation to give way, unless it could not be avoided. 184 Virtually no observations could be made to the left (north) in the last 50m prior to the intersection (remembering that a car travelling 54km/h is travelling 15 metres per second). The point is demonstrated by the fact that Mr Smith saw the dust from the accused’s car but did not see the car itself. Mr Culshaw said that to stop or come near to a stop at the give way line, once the view to the left was clear, created the separate risk of a car coming over the rise to the right. A car travelling a little faster than the speed limit will be traveling at 30 metres per second. 185 It was then said that, given the clear view available in both directions from further west on Steelton Road, there was nothing dangerous about making observations (and the decision to proceed) at about the point of the intersection advisory sign or even earlier. 186 Mr Culshaw referred to the photograph in P6 which was taken on Steelton Road from a distance of five hundred metres before the intersection. At the time the accused’s vehicle was at this point, the Mazda would have been in a position further north on Main Road 45 but the evidence did not permit a finding to be made of its actual position. Further north on Main Road 45 from the position of the Mazda as seen at the start of the dashcam, there were no bushes lining Main Road, obstructing a view of Main Road. However, what had not been established on the evidence was whether or not the trees and bushes lining the northerly aspect of Steelton Road obstructed the accused’s view of Main Road 45 and if so, for how long. -- 43 of 61 -- [2026] SADC 93 42 187 Dr Anderson’s evidence provided an explanation for the accused’s failure to see the Mazda that fitted most comfortably with the rest of the evidence in the case. In circumstances where it can be confidently found that the accused did look to the left, an inexplicable failure to see the Mazda would be surprising. Where there is another rational explanation, such as the hypothesis proffered by Dr Anderson, it would be more likely than the hypothesis that the accused looked in the direction of the Mazda but failed to see it. 188 Mr Culshaw urged me to make the following findings: 1. It is reasonably possible that the accused made his observations of traffic on Main Road 45 on the approach to the intersection, before his view of relevant traffic was obscured by the bushes on the left. 2. It is reasonably possible that he looked for traffic in both directions but most relevantly to his left. 3. The accused saw the Tiguan but did not see the Mazda because it was obscured by the passenger side A-pillar. 4. Having satisfied himself that it was safe to proceed through the intersection, he did so at a moderate speed of between 50 and 55kmh. 5. He did not see the Mazda until either after the collision or the collision was so imminent that it was too late to take any action to avoid it. 189 If those findings were made, Mr Culshaw said the conclusion should be that the accused drove without due care and attention and did not subject the public to a risk over and above that. 190 In the circumstances of this case, the difference between failing to look and looking but failing to see might be considered the difference between dangerous driving and driving without due care. 191 Even if the Court did not consider it to be reasonably possible that the accused’s line of sight to the Mazda was obscured by the A-pillar, the combination of (a) the visual obstruction created by the bushes (b) the accused’s modest speed and (c) the fact that the obligation was to give way nonetheless leads to a conclusion that the manner of driving was not dangerous. Findings of fact on undisputed or agreed evidence 192 I find the facts in P 17 proved. 193 I make the following findings of fact on the unchallenged or agreed evidence led at trial: 1. At about 3.20pm on 18 December 2023 the accused was driving a fawn-coloured Toyota Landcruiser S600CUX (‘Landcruiser’) in an easterly direction on Steelton Road. -- 44 of 61 -- [2026] SADC 93 43 2. The Landcruiser was fitted with a dashcam mounted on the windscreen approximately 180cm from the ground. The overall height of the Landcruiser was 195.5cm from the ground to the top of the cabin. It did not have a live feed so the accused could not view the footage being recorded. The dashcam and its field of view were different from that available to the driver of the Landcruiser. The dashcam footage cannot be used as a basis for a finding that what can be seen in the footage was seen by the accused. 3. At about 3.20pm on 18 December 2023 Mr Smith was driving a steel blue Mazda sedan S667CCW in a southerly direction on Main Road 45. 4. Steelton Road intersects with Main Road 45. On approach to the intersection for vehicles travelling in an easterly direction there is a decline in the road depicted in photograph 2 of P6. 5. The Mazda struck the Landcruiser on the left-hand passenger side after the Landcruiser had entered the intersection. The point of impact is marked on P3. Prior to the collision, the Mazda was travelling around 109km/h. 6. As a result of the collision, Marilyn Smith died and John Smith suffered harm. 7. Vehicles travelling on Steelton Road in an easterly and westerly direction are obliged to give way to traffic travelling on Main Road 45. 8. On 18 December 2023, there was a yellow and black intersection advisory sign on Steelton Road for eastbound vehicles 100 metres west of the intersection. 9. On 18 December 2023 there was a give way sign on Steelton Road for eastbound vehicles six metres west of the edge of the bitumen surface of the intersection and twelve metres from a series of broken white lines on the bitumen surface of the intersection. 10. The width of the bitumen part of the intersection was 28.06 metres east to west. 11. On 18 December 2023 there were bushes lining the western side of Main Road 45 leading up to the intersection. The height of those bushes was not measured. They had leaves on them at the time of the collision. The bushes obstruct the view of Main Road 45 for a driver of a vehicle on Steelton Road and obstruct the view of Steelton Road for a driver of a vehicle on Main Road 45. The obstruction of the respective views increases upon the approach to the intersection as the angle at which those bushes can be seen changes. The obstruction to the view of Main Road 45 is evident in photographs 21, 22, 30, 31, 33, 34 and 37 of P4. The obstruction of the view of Steelton Road is evident in photographs 45, 46, 47 and 50 of P4. It also accords with my observations on the view as I travelled down Steelton Road and then down Main Road 45 towards the intersection. 12. The dashcam in the Landcruiser recorded footage via the forward-facing camera for the five seconds prior to the point of impact and then for a further two minutes and 17 seconds. The rear-facing camera recorded footage for one minute. 13. In the slowed down version of the dashcam footage from the forward-facing camera, I could see only a very small portion of the front of the Mazda at 5 discernible points in time during the five seconds of footage: 13.1 The first point in time is captured in image 1 and 2 in P9 and that part of the Mazda is visible for 1 second. -- 45 of 61 -- [2026] SADC 93 44 13.2 The second point in time is captured in image 3 in P9 but that part of the Mazda is almost impossible to see on the slowed down version and what can be seen is visible for a fraction of a second. 13.3 The third point in time is captured in image 4 in P9 and that part of the Mazda was visible on the footage for less than a second. 13.4 The fourth point in time is captured in image 5 in P9 and that part of the Mazda is visible for a fraction of a second. 13.5 The fifth point in time is captured in images 6 and 7 in P9 and that part of the Mazda is visible for 1 second prior to impact. 14. In the dashcam footage played at normal speed it was very difficult to see the Mazda and I could not see it at all of the points in time it could be seen on the slowed down version. 15. The Tiguan stopped at the collision scene 19 seconds after the time of impact. 16. Data was retrieved from the airbag module fitted to the Mazda which related to the five seconds prior to impact. 17. At 36km/h an object will be travelling at 10 metres per second. 18. At 72km/h an object will be travelling at 20 metres per second. 19. At 108km/h an object will be travelling at 30 metres per second. 20. On 27 December 2023 the accused was interviewed by police. 194 It is important to emphasise that the dashcam does not replicate the field of view or line of sight of the accused and care must be taken in drawing any inferences from the dashcam regarding the accused’s field of view or line of sight. Assessment of witnesses and further findings of fact Police witnesses 195 I accept the evidence of Brevet Sergeant Guest, most of which was unchallenged. However, I disregard as irrelevant opinion evidence her statement that a motorist is expected to account for the obstruction caused by the A-pillar when driving. I also disregard as irrelevant opinion evidence her statement that there was still light that came through the leaves of the bushes and therefore it was still possible for movement to be seen. I found Brevet Sergeant Guest’s responses to the cross-examination about whether the bushes obstructed the view of Main Road 45 somewhat obtuse; she seemed reluctant to accept what was obvious, namely, that the bushes did obstruct the view. 196 Whilst there is some force in the criticisms of the investigation made by Mr Culshaw, including the absence of evidence about the distance from the intersection and the crest to the south on Main Road 45, or a reconstruction of the precise positions of each vehicle at an earlier point in time from the five seconds prior to impact, this does not assist in resolving the issue in dispute. -- 46 of 61 -- [2026] SADC 93 45 197 However, the absence of any reconstruction of the accident means that there is no evidence of the position of the Mazda on Main Road 45 at any point in time in the lead up to the collision, other than what can be seen and deduced from the dashcam footage. Even where it is visible on the dashcam footage, measurements were not taken of the distance from the Mazda to the point of impact at each fraction of a second that it can be seen on the footage. Had that been done, the position of the Tiguan on Main Road at the corresponding times could have been estimated. Similarly, there is no evidence of the position of the Landcruiser on Steelton Road at any point in time in the lead up to the collision other than the five seconds of travel that can be seen on the dashcam footage or can be extrapolated from the airbag module data. 198 Thus, there is no expert evidence to establish the relative positions of the Mazda and Landcruiser prior to the commencement of the dashcam footage. Such evidence may have assisted in determining with precision the period over which the Mazda may have been visible to a driver in the position of the accused if looking to the left whilst travelling down Steelton Road approaching the intersection. 199 I am satisfied that Senior Sergeant Kuchenmeister had the expertise to give the opinions that he did. There was no challenge to his expertise or experience. He was clearly well qualified to retrieve and analyse crash data from an airbag module. 200 I accept his evidence about the operation of the airbag module and the event data recorder in it and the data it records. I find that he appropriately retrieved that data and reproduced it in P10. I also accept his evidence that the data was highly accurate, and I will accept it as so. 201 On the basis of Senior Sergeant Kuchenmeister’s analysis of the pre-crash data I am satisfied and find that: • 5 seconds prior to impact the Landcruiser was travelling at 59km/h (+/- 1km/h). • 4 seconds prior to impact the Landcruiser was travelling at 56km/h (+/- 1km/h). • 3 seconds prior to impact the Landcruiser was travelling at 52km/h (+/- 1km/h). • 2 seconds prior to impact the Landcruiser was travelling at 52km/h (+/- 1km/h). • 1 second prior to impact the Landcruiser was travelling at 53km/h (+/- 1km/h). • At the point of impact, the Landcruiser was travelling at 54km/h (+/- 1km/h). • Between 5 and 3 seconds prior to the impact, the service brake was on. • Between 2.5 seconds and the impact the service brake was off. • Between 5 and 2.5 seconds prior to impact the accelerator percentage was zero. • At 2 seconds prior to impact the accelerator percentage was 17.0. -- 47 of 61 -- [2026] SADC 93 46 • At 1.5 seconds prior to impact the accelerator percentage was 19.0. • At 1 second prior to impact the accelerator percentage was 20.0. • At .5 seconds prior to impact the accelerator percentage was 31.0. • The average speed of the Landcruiser in the five seconds before impact was 55km/h. At that speed it would have travelled 15 metres per second and therefore covered a distance of 75 metres. 202 I further accept the evidence of Senior Sergeant Kuchenmeister that the following conclusions can be drawn from the data, and I make the corresponding findings of fact: • An accelerator percentage of zero means that there was no pressure being applied by the accused to the accelerator pedal at all. • When the service brake was recorded as on that means that there was some pressure being applied to the brake pedal sufficient to illuminate the rear tail-lights. This is not an indication of the level of braking. The brakes were being applied by the accused without any significant force. • The drop in speed from 59km/h to 52km/h is consistent with the low level of brake pressure being applied. • When the service brake indicator moved from on to off between three and two and a half seconds before impact, the accused took his foot off the brake and moved it towards the accelerator. • When the accelerator pedal percentage increased from zero to seventeen this was consistent with the time it takes for a driver during normal driving to lift his foot from the brake and move it across to the accelerator and apply pressure. This was slight acceleration. • At half a second before impact the accelerator pedal percentage increased to 31. This was a gradual acceleration by the accused using the accelerator pedal. • The Landcruiser was moving normally on the road, and the accused was steering in a straight line. • The speed recorded by the dashcam was reasonably accurate but as there was a time lag, the speed recorded by the airbag module is to be preferred. • There was no hard pre-impact braking of the Landcruiser. • There was no data for the speed of the Landcruiser in the twenty-five seconds prior to five seconds before impact. Accordingly, no finding can be made regarding the time it took for the accused to travel from a point 500 metres before the intersection to a point 75 metres prior to the intersection. However, I infer and find that the Landcruiser had been travelling at a higher speed in the 25 seconds prior to impact but that speed was reducing as a result of the application of the brakes. 203 I have not relied upon Senior Sergeant Kuchenmeister’s evidence of his calculation of the average speed of the Landcruiser and application to a distance -- 48 of 61 -- [2026] SADC 93 47 of five hundred metres to determine the time it would take to travel five hundred metres. Nor have I relied upon the same calculation based on the upper and lower speeds recorded in the airbag module data. There is no reliable evidence of the speed of the Landcruiser prior to the five seconds pre-impact captured by the airbag module data event recorder. Accordingly, there is no evidentiary foundation for a finding that the time it took for the accused to travel from a distance of five hundred metres to the intersection was between 30 and 34 seconds. Brevet Sergeant Tinsley’s statement was tendered. I accept the contents of that statement as the evidence he would have given if called and as it was unchallenged I am prepared to act upon it as accurate and reliable. Civilian witnesses 204 The statements of Mr Smith, Mr Kelly and Ms Kelly were tendered by consent as the evidence each would have given if called. 205 The only aspect of this body of evidence that was challenged was Mr Kelly’s estimate of the speed of the Landcruiser prior to the collision and the opinion he expressed as a consequence. An estimate of speed by a lay person is admissible evidence. Mr Kelly estimated the speed of the accused’s vehicle as being ‘not less than 80km/h’ as it approached the intersection. He concluded that it was going too fast because ‘it should have had to stop and give way to approaching vehicles’. 206 Mr Kelly’s estimate of the accused’s speed is inconsistent with the speed recorded by the airbag module and by a significant margin. I am not prepared to place any weight on Mr Kelly’s estimate of the accused’s speed given my findings regarding the accuracy of the airbag module data. In addition, I place no weight on Mr Kelly’s opinion that the Landcruiser was going too fast for the intersection because it is tied to his unreliable estimate of the speed of the Landcruiser and his incorrect opinion that the obligation upon the Landcruiser was to stop at the intersection in order to give way to approaching vehicles. Whilst in one sense, that is a correct statement if to proceed would risk a collision with an oncoming vehicle, the legal obligation is to slow down, and if necessary, stop to avoid a collision.148 207 I place little weight on Ms Kelly’s evidence that the Landcruiser was travelling quite fast. It is not clear whether Ms Kelly thought the Landcruiser was travelling quite fast by reference to the applicable speed limit, the prevailing conditions or some other yardstick. In the absence of an estimate of speed or a reason for her opinion that it was travelling quite fast, I have put this evidence to one side. 208 Otherwise, I accept the evidence of Mr Smith, Mr Kelly and Ms Kelly as truthful and reliable. Of particular relevance is the evidence of Mr Smith that, upon approaching the intersection, he could see dust in the air on the right side of the intersection but could not see a vehicle. He did not see the Landcruiser at all before 148 Australian Road Rules—1.12.2019 to 29.3.2024: Rule 69; see also definition of ‘give way’ in ARR dictionary. -- 49 of 61 -- [2026] SADC 93 48 the point of impact. The photographs of the scene and the view assisted me to understand this aspect of his evidence and provide an explanation for why he did not see the Landcruiser. 209 I infer and find that Mr Smith did not see the accused’s vehicle, despite his attention being drawn to it by the dust in the air, because his view was obstructed by the bushes on the western side of Main Road 45. Accordingly, I find that, at the time Mr Smith saw the dust in the air, the Mazda was at a position on Main Road 45 where the bushes obstructed his view of Steelton Road. I find that Mr Smith did not notice (and nor was he required to) the Landcruiser on Steelton Road at any earlier time, when his view was unobstructed. 210 Both Mr Kelly and his daughter saw the Landcruiser. I infer and find that this was because they were on a section of Main Road 45 where the view of Steelton Road was unobstructed by bushes. Record of interview at scene and on 27 December 2023 211 Brevet Sergeant Tinsley spoke with the accused whilst he was in the back of the ambulance just over half an hour after the collision. The accused was injured and likely in some state of shock but was able to give a coherent account of events. I have watched the footage of that interview. In this interview, the accused told Brevet Sergeant Tinsley that he had slowed down for the corner and, at Brevet Sergeant Tinsley’s suggestion, agreed he was doing about 60km/h. He said he saw one car back down the road and thought he was good to go and he did not see the car in front. 212 The accused’s interview is evidence in the prosecution case. It is not evidence on oath and has not been subjected to cross-examination. The prosecutor has not asked me to reject anything said by the accused in that interview. 213 Taking those matters into account, I find that the accused was truthful in his account of the circumstances of the collision. His account of slowing down for the intersection is supported by the evidence of Senior Sergeant Kuchenmeister. His estimate of his speed as he slowed down is generally consistent with the evidence of Senior Sergeant Kuchenmeister. I find that his statement that he saw a car back down the road was a reference to the Tiguan driven by Mr Kelly and is consistent with the accounts given by Mr Kelly and his daughter about their position behind the Mazda and the dashcam footage showing the Tiguan stopping at the collision scene 19 seconds after the time of impact. 214 I find that the accused genuinely believed that he could proceed through the intersection safely. I find that the accused was truthful when he said he saw the Tiguan but did not see the car in front of it (the Mazda). Record of interview 215 The accused’s record of interview is also evidence in the prosecution case. It is not evidence on oath and has not been subjected to cross-examination. Having -- 50 of 61 -- [2026] SADC 93 49 watched the record of interview, I am satisfied that the accused was doing his best to tell the truth. He gave his account in a straightforward and frank manner. Nothing the accused said in his interview was inconsistent with or refuted by the evidence in the prosecution case. The prosecution has not asked me to reject any part of the accused’s interview as unreliable or untruthful. 216 I accept his account as a truthful recollection of the circumstances leading up to and after the collision. Dr Anderson 217 I have ruled that Dr Anderson’s evidence is admissible. 218 Dr Anderson was an impressive and highly qualified expert witness. He made appropriate concessions when tested in cross-examination. 219 Having reviewed the dashcam footage with the benefit of Dr Anderson’s evidence, I am satisfied that the Mazda was on a constant bearing throughout the period of the footage and occupied the same region in the accused’s field of view throughout the period of the dashcam footage. The Mazda can be seen consistently at the edge of the frame, and the edge of the frame was sitting on a specific bearing from the way the camera was pointing. The dashcam footage commences after the Landcruiser had passed the intersection advisory sign and the Tiguan is not visible. 220 I am further satisfied that there was an area blocked from the view of the accused by the A-pillar. As Dr Anderson said, that is a physical fact. 221 I am satisfied that all identified limitations were taken into account by Dr Anderson in arriving at his opinion that it was plausible that the accused’s view of the Mazda was blocked at the time of the still image on page 1 of D18 and at times thereafter. 222 However, the limitations identified by Dr Anderson and the degree of confidence he expressed in his conclusion are such that I am not prepared to place any weight upon this evidence in determining whether a reasonably possible explanation for the accused’s failure to see the Mazda at any time or at all was because it was obscured by the A-pillar. Analysis and further findings 223 Based on the admissions in each record of interview, considered against the other findings of fact I have made, and the matters I noted on the view, I find that: 1. The accused was well familiar with the Steelton Road/Main Road 45 intersection and had travelled through that intersection regularly for years. 2. The accused was aware of his obligation to give way to traffic travelling on Main Road 45 when approaching the intersection of Main Road 45 and Steelton Road. -- 51 of 61 -- [2026] SADC 93 50 3. The reason the accused thought that ‘it was not a great intersection’ was because there was a crest to the right (south). I observed that crest on the view. I am satisfied and find that the crest was sufficiently close to the intersection to create the situation where vehicles only appeared in view once at the top of the crest. Although no evidence was led about the distance from the intersection to the crest the view and the photographs in P4 revealed that it was a topographical feature a prudent driver in the position of the accused would need to consider when complying with the obligation to slow down for the intersection. I infer and find that the accused was aware of the potential for vehicles travelling in a northerly direction on Main Road 45 to be obscured from the view of an eastbound driver on Main Road 45 until they had reached the top of that crest. I infer and find that this was the reason the accused slowed the speed of the Landcruiser by applying light pressure to the brake pedal dropping his speed from 59km/h (+/- 1km/h) to 52km/h (+/- 1km/h) and then three and half seconds before impact took his foot off the brake and applied pressure to the accelerator. I find that the accused had slowed to a speed that he thought would give him sufficient time to clear the intersection should a vehicle appear on the crest, bearing in mind that he was driving a utility with farm gates in the tray. 4. As the accused came down the hill, he was able to see a car with a trailer that he estimated to be at least a couple of hundred metres back from the intersection. I infer and find that as the accused drove towards the intersection he looked to his left and saw the Tiguan and determined that he could safely proceed through the intersection without having to stop. I infer and find that in making this determination the accused must have made sufficient observations of the Tiguan to make a valuative judgment of when his vehicle and the Tiguan were likely to reach the intersection. On the findings I have made the accused was correct in determining that he could safely proceed through the intersection without stopping without a risk of colliding with the Tiguan. 5. The accused did not, at any stage, see the Mazda until immediately before the point of impact. 6. The accused could not explain why he had seen the Tiguan but not the Mazda. 7. The accused did not see any vehicles on Main Road 45 to the south. I infer and find that the accused also looked to the south as he drove towards the intersection and that it is reasonably possible and indeed highly likely that he looked to the south more than once on his approach. 8. The accused wrongly believed that the speed limit for Steelton Road and Main Road 45 was 110km/h. 224 I make the following further findings: 1. It is reasonably possible that the accused’s view of Main Road 45 from five hundred metres west of the intersection advisory sign as he travelled towards the advisory sign was obscured at times by the trees and bushes on the northern side of Steelton Road as depicted in photograph 2 of P6 and photograph 55 of P4. This accords with my observations during the view. 2. However, there was a section of Steelton Road (as depicted in photograph 1 in P6) along which there were no obstructions to the view of Main Road 45 to the left or right. The accused referred to this in the interview. There is no evidence from which a finding can be made as to the time it took for the accused to travel down -- 52 of 61 -- [2026] SADC 93 51 that section of Steelton Road. No finding can be made about the precise position of the Mazda or Tiguan on Main Road 45 during any period of unobstructed view of Main Road 45. 3. Prior to impact the Tiguan was travelling approximately 27.78 metres per second. Prior to impact the Mazda was travelling around 30 metres per second. In the five seconds prior to impact, the Mazda had travelled approximately 150 metres. When it can be first seen on the dashcam footage, it was approximately 150 metres north of the intersection. There were no bushes obstructing the accused’s view of the Mazda when it was at that location. 4. Based on the evidence of Mr Kelly and his daughter, at the time the accused first saw the Tiguan on Main Road 45 it was in the vicinity of 100-200 metres behind the Mazda, but the precise separation distance cannot be determined. 5. I cannot make any firm finding as to where, on Steelton Road, the accused’s vehicle was when he first saw the Tiguan, but given the accused’s estimate of the distance of the Tiguan from the intersection (at least a couple of hundred metres) I consider it likely that the accused was approaching or near the intersection advisory sign (having passed the trees and bushes lining Steelton Road) when he first saw the Tiguan. At first, it might seem to be a striking aspect of this case that the accused saw the Tiguan but not the Mazda if he had an unobstructed view of both vehicles and given their approximate separation distance.149 However, it is entirely possible that the accused first saw the Tiguan because it stood out. Having seen it, he focussed on it and as a result did not see what was in front of it. 6. At the time the accused saw the Tiguan he determined that he could safely proceed through the intersection without having to stop to give way to the Tiguan. 7. I am satisfied and find that that the accused did not see the Mazda at any time until immediately prior to the collision because of a combination of the following factors, all of which are reasonable possibilities open on the evidence or otherwise findings of fact that I have made: 7.1 When looking to the left upon approach to the intersection, the accused saw the Tiguan. Thereafter, until the point of impact, the accused’s attention was drawn to and focused on the Tiguan as a vehicle to which he needed to pay attention in determining whether he could safely proceed through the give way sign without having to stop. 7.2 It was cloudy. 7.3 The Mazda was a colour that did not stand out against the background of the bitumen surface in the same way that the white Tiguan towing a trailer did; 7.4 The Mazda did not have headlights on; 7.5 On the approach to the intersection the accused was also looking to his right more than once to check that there was no oncoming traffic on Main Road 45. 149 The only possible obstruction to his view at that time was the A-pillar. As I have not accorded any weight to the opinion of Dr Anderson and his opinion was limited to the period of the dashcam footage (after the accused had passed the intersection advisory sign) this possibility is speculative and cannot be taken into account as a reasonable possibility. -- 53 of 61 -- [2026] SADC 93 52 7.6 In the last five seconds before impact, the Mazda was at times obscured from the accused’s view by the bushes on Main Road 45 and the obstruction increased as the Landcruiser drew closer to the intersection, particularly over the last 50 metres; 7.7 In the last four seconds before impact the accused’s view of Main Road 45 was significantly obstructed by the bushes. Dangerous driving and driving without due care 225 The accused has admitted that he drove without due care and therefore caused the death of Mrs Smith and harm to Mr Smith. Driving without due care occurs whenever there is a departure from the standard of care expected of a reasonably prudent driver in the position of the accused as appropriate to the circumstances.150 226 However, to prove that the accused drove his vehicle in a manner which was dangerous to any person, the prosecution must prove beyond reasonable doubt that the act of driving was such that a reasonable person in the situation of the accused would recognise the driving as dangerous, in that it involved a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public. 227 The consequences of the accused’s driving, whilst devastating and catastrophic for Mrs Smith, Mr Smith and their family, as a matter of law, do not play a role in the objective assessment of the driving itself and whether it constitutes driving in a manner dangerous or driving without due care. That qualitative assessment must be determined by reference to the evidence of the manner of driving and the circumstances in which it occurred. 228 It is important to remember that the prosecution case is that the accused failed to maintain the standard of observation that a competent and prudent driver was required to exercise. This was said to be a continuous failure from five hundred metres prior to the intersection. This contention assumes that there was a continuous and unobstructed view of Main Road from five hundred metres prior to the intersection and that the Mazda was there to be seen by the accused at all times and should have been seen by the accused at all times commencing from a distance of five hundred metres. 229 The evidence does not permit me to make a finding that the accused had an unobstructed view of Main Road 45 from five hundred metres prior to the intersection, and therefore his inadequate lookout was continuous and prolonged, but I am satisfied from the photographs tendered that he had an unobstructed view of Main Road 45 for a section of Steelton Road as he neared the intersection advisory sign. The evidence does not permit me to make a finding as to the position of the Mazda on Main Road 45 at the time the accused was five hundred metres from the intersection. There is no scale map of the relevant area in evidence. 150 Police v Melisi (2010) 106 SASR 105. -- 54 of 61 -- [2026] SADC 93 53 230 It is also important to bear in mind that the obligation upon a driver approaching an intersection is to slow down and if necessary, stop in order to give way to oncoming traffic151. In order to do so, a driver must ensure his lookout is adequate. The traffic advisory sign is an alert to a driver of the fact that there is an intersection ahead and the give way sign is an alert to the driver of the obligation to give way at the intersection. The traffic advisory sign is 100 metres from the intersection. The give way sign is 12 metres from the painted give way broken line. 231 For a driver unfamiliar with the area and in particular, Steelton Road, it may not be apparent until the intersection advisory sign is sighted that there is an intersection in the distance. Upon sighting the give way sign, the driver is on notice of the obligation to give way to traffic on Main Road 45. For such a driver, the observations of traffic for the purpose of giving way may not commence until much closer to the intersection. 232 The accused was familiar with the intersection. This did not alter the legal obligation imposed upon him to give way to traffic on Main Road 45 or oblige him to be exceptionally careful. It did not impose upon him a legal obligation to commence observations of traffic on Main Road 45 at a particular distance from the intersection, let alone from five hundred metres. His obligation was to drive with due care and attention and to give way. 233 However, his familiarity with the intersection is relevant because it demonstrates that he was aware of the obligation to give way without having to sight the intersection advisory sign and give way sign and aware of a potential hazard (the crest to the south) associated with coming to a stop at the intersection. He would also have been aware that the view of Main Road 45 was, in parts, obscured by bushes. However, the latter would have been obvious even to a driver unfamiliar with the intersection. 234 Provided a driver’s lookout is adequate and the speed of his car is such that he can stop at the give way line if necessary to discharge the obligation to give way, precisely when a driver commences observations of traffic will be a decision for the driver. Some drivers may come to a stop and if so, must remain stationary until it is safe to proceed. Some drivers may come to a near stop at the give way line to ensure a clear line of sight. Others may be satisfied that there is a clear line of sight at an earlier point in time and not come to a near stop or slow down significantly. Provided the driver gives way when to proceed would risk a collision, the obligation to drive with due care and attention is discharged. 151 The Dictionary to the Australian Road Rules (SA) defines give way: Give way for a driver or pedestrian, means— (a) if the driver or pedestrian is stopped—remain stationary until it is safe to proceed; or (b) in any other case—slow down and, if necessary, stop to avoid a collision. -- 55 of 61 -- [2026] SADC 93 54 235 The difference between dangerous driving and driving without due care was articulated in the classic statement by Napier CJ in 1953 in his directions to the jury in R v Duncan: I think that the distinction between these two offences is best explained by pointing out to you that all – or at any rate most – of us are liable at times to do things that we ought not to do, and to leave undone things that we ought to have done. When we use the public highway, we must expect to meet people like ourselves – people who are only human beings – with the human tendency to depart, at times, from the full standard of care and skill. That, you may regard as negligence – “driving without due care and attention” – but, nevertheless as an ordinary “risk of the road”. If it is a case of “You today, and me tomorrow”, we have to accept the risk as one of the ordinary incidents of modern life. If we live in an age of aeroplanes and fast-moving traffic, we have to take things as they are – the thick with the thin, and you the pedestrian today and tomorrow the driver, are to say where the line should be drawn between a mere lapse from due care and attention and conduct which is plainly blameworthy. If it is the sort of thing that any of us might be liable to do – although we might be sorry for it afterwards – you may regard it as driving without due care and attention, but, nevertheless, as an ordinary – and in one sense a necessary – risk of any road on which vehicles are driven by ordinary people like ourselves, people who mean well, but sometimes make mistakes. But over and above that, it must be a matter of common knowledge that there are some people who – at times – impose on other users of the road a risk which is by no means a fair or necessary risk of the road. They drive in a manner which imposes upon other users of the road a risk which any reasonable person, in the situation of the driver, ought to recognise as a real danger to the public. That, gentlemen, is what I think this information means, when it charges the accused with driving in a manner dangerous to the public. I refer to the sort of risk which is in no sense and ordinary or necessary risk of the road, and to a manner of driving which is treated as a fairly serious crime.152[Emphasis added] 236 In R v Coventry,153 the Court of Criminal Appeal stated: The fact to be proved in this case was that the defendant was driving in a manner which was dangerous to the public, and if it is necessary to attempt a definition we should say that driving in a manner dangerous to the public means the act of driving in a manner which any ordinary person (in the situation of the driver) would recognize as dangerous, in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road– the commonplace incidents of the use of the highway in question under the conditions of modern transport by fast-moving vehicles.154 237 The Court went on to state: 155 Any departure from the full standard of reasonable care, however transitory, and however slight the risk may be, is properly described as negligence. It is desirable to point out that the most careful and skilful of drivers may allow his attention to wander, or do a foolish thing through inadvertence, and that this may be "blameworthy"; but, men being what they are, negligence of this kind is, more or less, on a par with pure misadventure. It is a fair risk of the road⎯in so far as ordinary people are frequently careless, and very few are 152 See Note at conclusion of R v Mayne [1975] 11 SASR 583. 153 (1938) SASR 79. 154 Ibid 86. 155 Ibid 87. -- 56 of 61 -- [2026] SADC 93 55 always careful. The charge of driving to the danger of the public involves more than this. It implies conduct which is open to grave censure as involving the plain threat of serious injury to other people. 238 On appeal to the High Court, the majority observed:156 It is, in our opinion, wrong to exclude an act or omission from ‘manner of driving’ because it is casual or transitory in some senses in which these somewhat flexible words may be understood. Such an exclusion may even suggest that carelessness or inattention may constitute a defence to a charge under the relevant provision of the section. Sudden, even though mistaken, action in a critical situation may not, in all the circumstances of a case, constitute driving to the danger of the public. But casual behaviour on the roads and momentary lapses of attention, if they result in danger to the public, are not outside the prohibition of that provision merely because they are casual or momentary. Further, ‘manner of driving’ includes, in our opinion, all matters connected with the management and control of a car by a driver when it is being driven. It includes starting and stopping, signalling or failing to signal, and sounding a warning or failing to sound a warning, as well as other matters affecting the speed at which and the course in which the car is driven. 239 In a separate judgement, Starke J stated:157 The offence is established if it be proved that the acts of the driver create a danger, real or potential, to the public. Advertence to the danger on the part of the driver is not essential; all that is essential is proof that the acts of the driver constitute danger, real or potential, to the public. But whether such danger exists depends upon all the circumstances of the case, e.g., the character and condition of the roadway, the amount and nature of the traffic that might be expected, the speed of the motor vehicle, the observance of traffic signals, the condition of the driver's car, especially if he knew, for instance, that his brakes were out of order and so forth. Substantially, the judgment on appeal accords with this view. “Upon a charge of driving at a speed or in a manner which is dangerous to the public the prosecution is not so much concerned with the state of the defendant's mind as with his conduct. The essence of this charge is the objective fact—the risk of injury to others.” And, citing McCrone v. Riding: “That standard is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway” (See Andrews v. Director of Public Prosecutions; Kingman v. Seager). [citations omitted] 240 In The Queen v Mayne,158 Bray CJ explained that since R v Coventry juries have been directed by reference to that part of the decision of the Court of Criminal Appeal already set out. Bray CJ, gave, as an example, the direction Napier CJ gave to a jury in The Queen v Duncan set out above. 241 In R v Kamleh,159 King CJ stated: The question is not whether the accused intended to drive, or appreciated that he was driving, in a manner dangerous to the public but whether, in the judgment of the jury, a reasonable person in the situation of the driver would have appreciated that he was driving in a manner dangerous to the public. 156 R v Coventry (1938) 59 CLR 633 at 638 – 639. 157 Ibid at 639. 158 (1975) 11 SASR 583, 585 (Bray CJ, with whom Hogarth and Jacobs JJ agreed) 159 (1990) 51 A Crim R 435 at 436-437. -- 57 of 61 -- [2026] SADC 93 56 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. [Emphasis added] 242 In Jiminez v R,160 the majority of High Court stated: The manner of driving encompasses "all matters connected with the management and control of a car by a driver when it is being driven". For the driving to be dangerous for the purposes of s 52A there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention. 243 In R v Donovan161, the Court of Appeal referred to the well-known examples of cases where the prosecution has failed to prove dangerous driving notwithstanding proof of a defective lookout. The Court said that it may be of assistance to review them but the outcome in each case necessarily turned on its own particular facts and circumstances: For example, in England v R, a driver was acquitted by the Court of Criminal Appeal of dangerous driving, and a conviction for driving without due care was substituted. The appellant in that case was driving in fog along a country road in a 110 km/h zone at around 70 km/h, 10 km/h faster than the trial judge thought was a safe speed, when he collided with a trailer on the rear of a tractor, killing the driver of the tractor. Whilst the Court accepted that there was a departure by the appellant from the standard of care expected of ordinary prudent drivers, the circumstances were made difficult by the foggy conditions and the fact that the trailer on the rear of the tractor was without proper lighting. As King CJ explained: The question is whether the degree of the departure by the appellant from the standard of care and attention to be expected of an ordinary prudent driver, exceeded that which is present in the sort of faulty driving into which ordinary drivers may occasionally lapse due to carelessness or inattention, and whether it reaches a degree of gravity which any reasonable driver ought to appreciate imposes on members of the public a real danger, going beyond the dangers of the road which result from ordinary carelessness and inattention, thereby amounting to a serious crime. After pointing out that the relevant speed limit was 110 km/h, and notwithstanding the finding that a safe speed limit would have been 60 km/h, King CJ was not prepared to conclude that the failure to maintain an adequate lookout was in these circumstances such a grave departure from the standard of care as to justify a conviction for dangerous driving. Similarly, in Bliss v R, the Court of Criminal Appeal again allowed an appeal and set aside a conviction, substituting a conviction for driving without due care. Mullighan J, with whom Bollen and Duggan JJ agreed, cited the observations of King CJ in Kroon v The 160 (1992) 173 CLR 572 at 579. 161 [2025] SASCA 7, [98] – [101] -- 58 of 61 -- [2026] SADC 93 57 Queen, referred to earlier. In that case, the motor accident occurred just after dark at an intersection near Mount Gambier. The appellant approached the intersection at a relatively slow speed and failed to yield right of way. In the resulting motor accident, the other driver sustained serious injuries. Though there was a suggestion of alcohol consumption, in the absence of expert evidence, the Court held that this should have been left out of account. The Court found that the only complaint to be levelled at the appellant was defective lookout, “a common complaint about all drivers at some stage”, and this was incapable of establishing dangerous driving as distinct from driving without due care. These cases demonstrate that for the prosecution to make out dangerous driving, it is necessary to do more than demonstrate a want of care and attention. It is necessary for the prosecution to demonstrate beyond reasonable doubt that the driving was dangerous in the sense that it subjected the public to a risk over and above that ordinarily associated with the driving of a motor vehicle. Those ordinary risks include driving which may, on occasion, include a failure to exhibit due care and attention.162 [Emphasis added]. Application of principles to the facts 244 The accused failed to give way to the Mazda. He was obliged under the Australian Road Rules, Rule 69 to give way to traffic on Main Road 45. The obligation to give way is defined in the dictionary of the ARR as requiring a driver to ‘slow down and, if necessary, stop to avoid a collision’. 245 I am satisfied that the accused was aware of his obligation to give way and complied in part with that obligation by slowing down upon his approach to the intersection for the purpose of ensuring he could, if necessary, stop in order to give way to oncoming traffic. It is no part of the prosecution case that he was going too fast. 246 I am satisfied on all of the evidence that the accused failed to give way to the Mazda because he looked but did not see the Mazda. This is not a case of failing to look at all. 247 On the whole of the evidence, I am satisfied that the accused’s lookout was inadequate. He should have seen the Mazda, but he did not. However, this is not a case where there is no explanation for his failure to see the Mazda. 248 There can be no doubt, at law, that inattention or a failure to keep a proper lookout may of itself constitute driving in a manner dangerous to the public.163 It is important to keep in mind the distinction between the obviously correct statement that to drive a motor vehicle into an intersection without giving way to traffic, as required by the road rules, is in all circumstances a dangerous thing to do164 and whether, in all the circumstances that manner of driving was, as a matter of law dangerous. 249 An analysis of the circumstances is required to determine whether the prosecution has proved dangerous driving or the lesser offence of driving without 162 R v Donovan [2025] SASCA 7, [98]-[102]. 163 Kamleh v R (1990) 51 A Crim R at 435; King v R [2012] HCA 24; and R v Arnold [2003] SASC 422. 164 King v R (Ibid), 101 per Bell J. -- 59 of 61 -- [2026] SADC 93 58 due care or no offence at all. This will involve an assessment of the degree to which the driving conduct departed from the standard which the law imposes on all who drive. 250 I am satisfied that the accused’s lookout was inadequate (because there were times when the Mazda was not obscured from view but the accused nevertheless failed to see it) but in determining whether it has been proved beyond a reasonable doubt that his inadequate lookout amounted to dangerous driving, it must be evaluated having regard to the surrounding circumstances: R v Pearse [2011] SASCFC 65.165 251 I have found that there is an explanation, but not an excuse, for his failure to see the Mazda; a finding which I am satisfied is more than reasonably open on the evidence. 252 I have had the advantage of viewing the scene and considering the accused’s account against all of the evidence. 253 This is not a case of a driver who has not attempted at all to discharge his obligation to drive with due care and attention or flagrantly ignored it. This is not a case of a driver who has not seen the give-way sign or a driver who has not looked at all. To the contrary, I am satisfied that the accused looked for traffic in both directions and slowed down for the intersection in order to be able to stop if necessary. 254 There were features of this intersection that contributed to the accused’s inadequate lookout, together with the presence of the Tiguan upon which the accused’s attention became focused. 255 The accused was travelling well under the speed limit, was not affected by alcohol or drugs and was not distracted by the use of a mobile phone or any other device. There were no other deficiencies in his manner of driving. It is not the prosecution case that the speed at which he was travelling was too fast for a driver approaching that intersection. It was not the prosecution case that any decision by the accused to travel at the speed he did in the five seconds pre-impact, in order to avoid a collision should a vehicle come over the crest, was dangerous driving or otherwise contributed to his driving in a dangerous manner. 165 [40]. In that case, the accused was convicted by a jury of causing death by dangerous driving. An appeal against conviction was dismissed. The accused failed to give way at an intersection. On appeal it was said that there was a failure to keep a proper lookout, but it was not solely that. Sulan J (with whom Vanstone J agreed) held that the failure had to be considered against the circumstances, namely the weather was good, there was no obstruction interfering with the appellant’s view, there were no trees, the road was flat and there were no other impairments to his view. In addition, the appellant did not slow down prior to his vehicle entering the intersection. It was a combination of these factors on which it was held that it was open to the jury to conclude that the appellant drove in a manner dangerous to the public. -- 60 of 61 -- [2026] SADC 93 59 256 The accused’s manner of driving was in the category of a common human failing. A defective lookout, is, as the Court observed in Bliss v R166, “a common complaint about all drivers at some stage”.167 It is the sort of faulty driving into which ordinary drivers may occasionally lapse due to carelessness or inattention. It is something that is an ordinary risk of the road. It is the sort of faulty driving that can have no consequence or can result in tragedy, as it has done in this case. 257 The accused’s manner of driving was an ordinary, humanly understandable departure from the strict standard of care, notwithstanding the catastrophic and devastating outcome.168 258 The prosecution has not proved beyond reasonable doubt, in the circumstances as I have found them, that there was any aspect of the accused’s driving that subjected the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention. Verdicts. 259 I find the accused not guilty of both counts. 166 (1993) 173 LSJS 255. 167 For other examples of a driving without due care constituted by a defective lookout, see the cases referred to in footnote 70 in R v Donovan [2025] SASCA 7 which refers to: McCandless v Police [2021] SASC 98, Bliss v R (1993) 173 LSJS 256, R v Lenarczyk [2015] SADC 95, Sprigg v Police [2011] SASC 10, Fritsch v Police [2012] SASC 54, Wimmer v Police [2013] SASC 95, Thiele v Police [2009] SASC 159, Police v Jachmann [2010] SASC 345 and Nagy v Police [2018] SASC 141. 168 For other examples of a driving without due care constituted by a defective lookout, including failing to see a red traffic light, see McCandless v Police [2021] SASC 98, Bliss v R (1993) 173 LSJS 256, R v Lenarczyk [2015] SADC 95, Sprigg v Police [2011] SASC 10, Fritsch v Police [2012] SASC 54, Wimmer v Police [2013] SASC 95, Thiele v Police [2009] SASC 159, Police v Jachmann [2010] SASC 345 and Nagy v Police [2018] SASC 141. -- 61 of 61 --