R v Matthews [1999] ACTSC 107 (15 October 1999)

Last Updated: 13 May 2005

THE QUEEN v JOHN ALEXANDER MATTHEWS [1999] ACTSC 107 (15 October 1999)

CATCHWORDS

CRIMINAL LAW - trial by judge alone - two counts of culpable driving causing grievous bodily harm --whether evidence sufficient to prove that the accused was the driver - whether stability of novus actus interveniens excluded - no issue of principle.

Supreme Court Act 1933, s 68C

Crimes Act 1900, s 29

Evidence Act 1995, s 184

DPP v Smith (1961) AC 290

R v Tranby (1991) 52 A Crim R 228

R v Cornish (1988) 48 SASR 520

Peter Francis Affleck Vol 65 Crim R 96

No. SCC 201 of 1998

Judge: Crispin J

Supreme Court of the ACT

Date: 15 October 1999

IN THE SUPREME COURT OF THE )

) No. SCC 201 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

v

JOHN ALEXANDER MATTHEWS

ORDER

Judge: Crispin J

Date: 15 October 1999

Place: Canberra

THE COURT FINDS THAT:

1. The accused is guilty of the first count on the indictment namely that on or about 20 June 1997 at Canberra in the Australian Capital Territory he, by the culpable driving of a motor vehicle, namely a Holden sedan, while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, caused grievous bodily harm to Joanne Dangerfield.

2. The accused is guilty of the second count on the indictment namely that on or about 20 June 1997 at Canberra he, by the culpable driving of a motor vehicle, namely a Holden sedan, while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, caused grievous bodily harm to Wayne Williams

1. The accused was arraigned on the following charges:

(a) that on or about 20 June 1997 at Canberra in the Australian Capital Territory he, by the culpable driving of a motor vehicle, namely a Holden sedan, while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, caused grievous bodily harm to Joanne Dangerfield; and

(b) that on or about 20 June 1997 at Canberra he, by the culpable driving of a motor vehicle, namely a Holden sedan, while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, caused grievous bodily harm to Wayne Williams.

2. Upon his arraignment he pleaded not guilty to each charge.

3. As the accused elected to be tried by judge alone I am bound by the requirements of s 68C of the Supreme Court Act 1933. That section is in the following terms:

"(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any finding has, for all purposes, the same effect as the verdict of a jury.

(2) The judgment in criminal proceedings tried by a Judge alone shall include the principles of law applied by the Judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a Judge alone, if the law of the Territory would otherwise require a warning to be given to a jury in such proceedings the judge shall take the warning into account in considering his or her verdict."

4. Culpable driving is a statutory offence created by s 29 of the Crimes Act 1900 in its application to this Territory. Subsection (4) of that section provides as follows:

"For the purpose of this section, a person shall be taken to drive a motor vehicle culpably if the person drives the vehicle -

(a) negligently; or

(b) while under the influence of alcohol, or a drug, to such an extent as to be incapable of having a proper control of the vehicle."

5. As in trials conducted with a jury, the accused is entitled to the presumption of innocence, the Crown bears the burden of proving each element of each charge and the standard of proof is proof beyond reasonable doubt.

6. The allegations upon which the Crown rely may be stated briefly. The accused and another man, Mr Bruce White, had spent the bulk of the evening of 19 June 1997 at the Chisholm Sports Club. During the course of the evening they had met a number of other people including Ms Vanessa Jones, her partner who was identified in the evidence only as "Mick", Ms Dangerfield and Mr Williams. Mr Williams had remained sober but it appears that each of the others had consumed a significant amount of alcohol. At some stage during the latter part of the evening Ms Jones became concerned that Michael had drunk too much alcohol to safely drive a motor vehicle. Arrangements were made for her to drive his car to her home in Wedgewood Close, Chisholm. Ms Dangerfield was to drive her car to that house and Mr Williams was to drive Ms Dangerfield's car. The evidence as to what happened at the house is not entirely consistent. Mr Williams gave evidence that he had returned to the club to pick up Mr White and collect Ms Dangerfield's wallet or purse or handbag. Ms Jones could not recall that occurring. However nothing turns on this issue. It is common ground that Mr Williams, Mr White, Ms Dangerfield and the accused eventually left in Ms Dangerfield's car and that Mr Williams was initially the driver.

7. Arrangements had been made for the accused to stay at Mr White's house overnight and it was intended to go to that house first. However Mr Williams did not know the way and had to be given directions. When he missed a turn and had to make a U turn the accused began to abuse him. Mr Williams said that he began to get angry. He stopped the vehicle and got out. The accused then got into the driver's seat and rolled the vehicle forward to where he was standing. Mr Williams got in. The accused then accelerated rapidly "through the gears" down Baskerville Street, Chisholm towards the T intersection of that street and Heagney Crescent. Mr Williams estimated that the vehicle reached a speed in excess of 100 kilometres per hour and Mr Carlisle who lived in Baskerville Street only two houses from the intersection said that he heard a car go past his house very quickly. He said that it sounded like a car on a freeway. The driver obviously braked heavily as he approached the intersection but the vehicle, still under heavy braking, continued across Heagney Crescent and collided with a tree.

8. As a result of the collision Ms Dangerfield suffered a head injury, a fracture of her humerus, a fracture of her sternum, dislocation of her left shoulder joint, a laceration to her left leg, a haematoma to the left side of her head, a periorbital haematoma and numerous contusions.

9. Mr Williams suffered a fracture of his left tibia.

10. It was admitted by the accused on the advice of his counsel that these injuries were sustained and were capable of amounting to grievous bodily harm. Whilst it is normally incumbent upon the Crown to prove each element of each charge beyond reasonable doubt, s 184 of the Evidence Act 1995 authorises an accused person to make admissions on the advice of his or her counsel and such an admission relieves the Crown of the need to prove the facts so admitted. In any event, the phrase grievous bodily harm simply means really serious bodily harm (see, for example, DPP v Smith (1961) AC 290; and R v Tranby (1991) 52 A Crim R 228) and I am satisfied that the injuries suffered by Ms Dangerfield and Mr Williams each fall within this description. I am also satisfied that they were sustained in the accident.

11. Mr Adams, who appeared for the accused, said that there were two main issues in the case: first, whether the evidence proved beyond reasonable doubt that it was the accused who was the driver of the vehicle at the time of the accident; and second, whether the evidence excluded the hypothesis that the accident may have been caused by a novus actus interveniens.

12. Ms Dangerfield gave evidence that she remembered little of the evening. She did remember sitting in the back seat of a car looking at a house and, at another time, sitting in that back seat and leaning over to grab Mr White who was beside her. However, she remembered nothing of the accident and could not even recall whether it was day or night when she attempted to grab Mr White. Despite the paucity of her evidence in chief she was cross-examined at considerable length. It was suggested that her evidence had been less than candid and that she could really remember more about the evening than she claimed.

13. Whilst the accused himself had no memory of the accident Mr Adams suggested that Ms Dangerfield may have been the driver rather than him. This suggestion was supported by reference to a number of factors. It was her car that was being driven, she had owned it for only about two days and would not have let someone whom she believed to be intoxicated drive it. She conceded there had been an occasion some years earlier when she had become resentful of the accused because he had told Mr White, who had been her boyfriend, of an earlier affair she had had with him. This had apparently been a factor in the break up with her relationship with Mr White. It was also suggested that she may have had a motive to implicate the accused as she had not arranged any comprehensive insurance on the vehicle. She had since commenced proceedings against him in relation to the damage sustained. Similarly, it was suggested that her third party insurance cover may have been in jeopardy if she had revealed that she had been driving the vehicle whilst intoxicated. Furthermore, Mr Adams submitted that the fracture which Ms Dangerfield had sustained to her sternum was consistent with her upper body having been impelled into contact with the steering wheel, which the photographs taken by an attending police officer revealed had been damaged.

14. Nonetheless, Ms Dangerfield denied that she had been the driver. She also denied suggestions that she may have been sitting in the front seat either on the console between the seats or on the lap of either the driver or the other front seat passenger.

15. Despite Mr Adams' criticisms of her I formed the impression that Ms Dangerfield was an essentially truthful witness. She appeared to be a determined and at times argumentative person who admitted to having sometimes become aggressive after drinking alcohol and did not demur from the proposition that she was no "shrinking violet". Her evidence was at times prone to cause some confusion because when being cross-examined she repeatedly attempted to give answers without waiting for the questions to be completed. When she was able to restrain herself until the last word of the question she sometimes gave an answer which she seemed to have formulated halfway through the question and to have been unwilling to modify even if it proved to be a non sequitur in the light of what followed. From time to time she argued with the cross-examiner and on at least one occasion simply refused to answer the question until it was re-formulated. Whilst her evidence provided some support for Mr Adams' criticisms I think that most of the perceived deficiencies were attributable not to lack of candour but to a combination of impatience and irritation with the cross-examination.

16. Mr Williams gave evidence that when they left Ms Jones' house he got into the driver's seat of Ms Dangerfield's car, the accused got into the front passenger seat and Mr White and Ms Dangerfield got into the back seat. When he subsequently started to become angry he stopped the car, got out and walked slightly ahead. He then heard the engine restart and the vehicle rolled down beside him. When he got in he saw that the accused was driving. In cross-examination he said that he had not seen the driver before getting into the vehicle and had assumed that Ms Dangerfield was driving. He admitted that after the accident he had initially had no memory of what had occurred and that it had taken some time, perhaps two or three days, to have a clear recollection of the accident. He agreed that he had been given analgesics and other drugs whilst in hospital. He also conceded that there were some things that he could not recall. When it was put to him that Ms Dangerfield may have been the driver he said, "no, I am satisfied in myself that I remember him sitting in the front seat" and later, "I'm happy to say I remember him in the front seat beside me". When Mr Adams continued to press the proposition he said, "that's not the way I remember it". However, he ultimately conceded that it was "a possibility but not a probability" that he may have been mistaken. When asked whether, if it had been the accused who was driving, Ms Dangerfield may also have been in the front of the vehicle he firmly rejected the proposition. He said that he had turned physically in his seat to concentrate on who was driving and that if there had been a third person there he would have been looking straight at her. He was asked whether Ms Dangerfield may have projected herself forward from the back into the front and between the two front seats so that at least the upper part of her body was in the front of the vehicle at some stage. He said that he did not recall her leaning through in such a manner but that it was a possibility.

17. I found Mr Williams to be an impressive witness and I accepted his evidence. I thought he exhibited considerable confidence in his recollection that the accused had been the driver of the vehicle immediately before the collision though he plainly felt obliged to concede the possibility of error, given the time it had taken for him to recover his memory and the other factors to which I have referred.

18. Mr White had little recollection of the events which ensued after he had left Ms Jones' house. He said that he had been in the back of the car and so had the accused. He subsequently remembered being woken up and found that he was on his back "on the road or something". He had also suffered a number of injuries as a result of the accident. Whilst I am sure that Mr White genuinely believed that the accused was in the back seat with him when the vehicle left Ms Jones' house, his evidence inspired little confidence and I am far more inclined to accept the evidence of Mr Williams and Ms Dangerfield to the effect that he was in the front passenger seat. Ms Jones gave evidence of seeing the accused and Ms Dangerfield "playfighting" to see who would get the front seat but was unable to say who succeeded.

19. Ultimately, of course, the crucial issue is not who was in the front seat when the vehicle left Ms Jones' house but who was in the driver's seat when the accident occurred. There was ample evidence that the accused was found in the driver's seat immediately after the accident.

20. Mr Carlisle, who lived in Baskerville Street about 50 metres from the intersection, said that when he heard the crash he immediately jumped up, told his wife to dial the 000 emergency number, pulled on some clothes and ran out. He said he would have been at the scene within about one minute. He saw a person behind the driver's seat "upside down". He then looked in the front and saw a woman lying across the front passenger seat with her legs between the pillar and the seat and her head on the console. He also saw the driver who was motionless and sitting upright with his head back. He then left the vehicle and called the 000 emergency number. He returned three or four minutes later. This time he noticed that the vehicle had a fourth occupant who was under the woman in the front passenger seat.

21. Paramedics who attended the accident, Mr McLean and Mr Seddon, also said there were three people in the front of the vehicle. However they said that the woman was lying across the laps of the men in the two front passenger seats with her head almost up against the door and the lower part of her body and legs on the lap of the passenger. Sergeant Kuster gave similar evidence. The person in the driver's seat was later identified to Mr McLean as the accused and Mr Allen, a former constable with the Australian Federal Police, gave evidence that when he arrived at the scene two of the people had been removed from the car and that the accused was still in the driver's seat.

22. There was evidence that the driver's door was jammed shut and had to be forced open. There was also evidence that Mr Williams, who was the man in the front passenger seat, had an injured foot and that it was trapped by the firewall of the vehicle.

23. I found Mr Carlisle a persuasive witness and the only aspect of his evidence which caused me any concern was that relating to the position of Ms Dangerfield in the front of the vehicle. That was obviously quite different from the position in which she was found by the ambulance officers and police only some minutes later. It is possible that he was mistaken but I think it is more likely that she either moved before again losing consciousness or that Mr Williams, who was the person underneath her, may have moved her in attempting to extricate himself from the weight of her body. Mr Carlisle said that after he had returned to the vehicle he heard Mr Williams groan, say that his eye was sore and then say "get the girl off him".

24. Mr Adams relied upon evidence from Dr Hewitt to the effect that an undisplaced fracture of the kind which Ms Dangerfield had suffered to her sternum would have been consistent with her being thrown with some force against the steering column. She also conceded she might have sustained such a fracture by being thrown forward from the rear of the vehicle. Furthermore, whilst she described the quite extensive injuries from which the accused had suffered she was unable to say with any certainty where he would have been sitting in the vehicle.

25. Mr Adams also called evidence from Mr Grant Johnston, a consulting engineer, to the effect that it was unlikely that the accused would have suffered a number of head and facial injuries but no major chest or external injuries if he had been sitting in the driver's seat alone and unrestrained by a seat belt at the time of the accident. Mr Johnston also expressed the view that the injury which Ms Dangerfield had suffered to her sternum would have been consistent with her coming into violent contact with the steering wheel.

26. I accept that the position in which the paramedics found Ms Dangerfield may provide some support for Mr Adams' contention that her sternum may have been fractured when she came into violent contact with the steering wheel. On the other hand, it is difficult to imagine how the three people whom Mr McLean found in the front seat of the vehicle could have got into those positions had the accused not been driving. Mr Johnston did not suggest that the impact of the collision might have caused Ms Dangerfield to be ejected from the driver's seat and suspended below the roof of the vehicle whilst the accused was hurled into the driver's seat in time for her to land in his lap. In my view any such hypothesis may be dismissed as completely implausible.

27. Nor do I accept that there is a reasonable hypothesis that Ms Dangerfield may have moved the accused into the driver's seat after the accident. To do so it would have been necessary for her to have got out of the driver's seat, obtain the presumably unconscious or semi-conscious body of the accused from whatever seat he occupied and manoeuvre him into the driver's seat before lying across Mr William's lap and perhaps that of the accused. Furthermore, she would have had to have accomplished this whilst the driver's door remained jammed shut. In addition Mr Williams occupied the front passenger seat and his foot was not only injured but trapped by the firewall of the vehicle. Hence it would have been necessary for her to have got out and dragged the presumably unconscious body of the accused back over him. All this would have been quite a feat for a woman of no exceptional size who had a fractured humerus and a fractured sternum to say nothing of her other injuries. Furthermore, it would have been a feat that would have had to have been carried out without observation by anyone who attended the scene of the collision including Mr Carlisle who said that he arrived within one minute.

28. It was not suggested that either Mr Williams or Mr White may have moved the accused. Mr Williams could not have done so as his foot was trapped and Mr White seems to have remained motionless and presumably unconscious until tapped on the bottom by Sergeant Kuster. Nor was it suggested that either may have been the driver.

29. The Crown case also gains considerable support from the evidence of Mr Williams and more limited support from that of Ms Dangerfield.

30. In all the circumstances I am satisfied beyond reasonable doubt that the accused was driving the vehicle at the time of the accident.

31. Mr Adams' contention that there may have been a novus actus interveniens is relevant to both the remaining elements of each charge, namely: that the accused drove the vehicle culpably in that he was so affected by alcohol as to be incapable of having proper control over his vehicle at the relevant time; and that the injuries suffered by Ms Dangerfield and Mr Williams were caused by that culpable driving. The Crown is necessarily dependent upon circumstantial evidence to establish these elements and in each case it is incumbent upon the Crown to establish to beyond reasonable doubt that there is no reasonable hypothesis consistent with the innocence of the accused.

32. A sample of blood taken from him at the hospital after the accident was analysed and found to contain at least 0.168 grams of ethyl alcohol per 100 millilitres of blood. Whilst it is not possible to determine the precise concentration of alcohol in the blood of the accused at the time of the accident, Dr Anthony Moynham, the director of the Clinical Forensic Medicine Unit with the Sydney Police Centre, gave evidence that if consumption of alcohol had commenced at 6.00 pm his blood alcohol content at the time of the accident would have been between 0.139 and 0.236 grams per 100 millilitres, if it commenced at 7.00 pm it would have been between 0.135 and 0.236 grams per 100 millilitre and if it had commenced at 8.00 pm it would have been between 0.129 and 0.236 grams per 100 millilitre. The accused said that he arrived at the club at about 6.10 pm and had two or three schooners of beer within the first two hours. Dr Moynham expressed the expert opinion that within any of the ranges of alcohol concentration to which I have referred all persons would be under the influence of intoxicating liquor to the extent that their driving ability would be impaired.

33. Of course, it cannot be assumed that a person was under the influence of alcohol to such an extent as to be incapable of having proper control over the vehicle merely because his or her blood alcohol content has been shown to have exceeded the legal limit. Nor is it sufficient for the Crown to prove that his or her blood alcohol content was of a level that would have caused any person's driving ability to have been impaired. Impairment of driving ability and incapacity to have proper control are not co-extensive concepts, though the former may obviously give rise to the latter.

34. Consequently, the Crown also relied on evidence as to the speed and manner of driving to support an inference that the accused would have been under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. It is in this context that Mr Adams seeks to raise the possibility of a novus actus interveniens in relation to this element of each charge.

35. There are a number of factors which suggest that the accident was caused by the manner in which the accused drove the vehicle rather than some supervening cause. There was evidence that the vehicle was being driven very fast in a suburban street governed by a 60 kilometre per hour limit towards a T intersection. Mr Allen gave evidence that the weather was cold but fine, the bitumen was in good condition and there was a give way sign facing in the direction from which the vehicle was approaching on a median strip in the centre of Baskerville Street. The median strip extended some distance along Baskerville Street and itself provided added warning of the imminence of the intersection. In addition there were painted markings on the southbound lane at the give way sign. The skid marks shown in photographs taken by attending police make it plain that the accused mounted the median strip as he approached the intersection, crossed onto the incorrect side of the roadway and was unable to stop before colliding with the tree on the other side of Heagney Crescent. These facts give rise to the strong inference that the accident occurred because the accused in his intoxicated state was driving much too fast as he approached the intersection and lost control of the vehicle.

36. It was not suggested that either Mr Williams or Mr White grabbed the steering wheel or did anything to interfere with the manner in which the accused was driving though Mr Williams said that he had sworn at him and told him to stop driving in such a fashion. There is nothing to suggest the presence of any other vehicle which may have caused or contributed to the causation of the accident.

37. However Mr Adams submitted that there was a reasonable hypothesis that even if Ms Dangerfield was not driving the vehicle at the time of the accident she was nonetheless in the front of the vehicle lying across the laps of the two men with her chest and shoulders between the accused and the steering wheel. Her presence in that position and/or her actions may have interfered with his control of the vehicle. In support of this submission Mr Adams again relied upon the evidence of Dr Hewitt and Mr Johnston to the effect that the injury to Ms Dangerfield's sternum was consistent with an impact between that part of her body and the steering wheel and the latter's evidence that it was unlikely that the accused could have suffered facial but not chest injuries if he had been in the driver's seat alone unrestricted by a seat belt.

38. It is true that Ms Dangerfield had little memory of the incident but I accept her evidence that what recollection she had was of being in the back seat. More importantly, I accept Mr Williams' evidence that Ms Dangerfield was not at any time on his lap or in the front of the vehicle between him and the accused. Hence, I am satisfied that the Crown has effectively excluded any hypothesis that she may have been on the lap of one or both men in the front seats or on the console between them. Of course, even if some such an hypothesis had been open on the evidence it would not necessarily have been consistent with the innocence of the accused. For example, evidence that a person was attempting to drive with a woman on his lap would scarcely have provided reassurance that he was not so affected by alcohol as to be incapable of properly controlling the vehicle or that injuries sustained when the vehicle crashed were not attributable to him driving whilst so affected.

39. Nonetheless, as I have mentioned, Mr Williams conceded the possibility she may have leant forward between the front seats though he could not recall her having done so. Mr Johnston agreed that if she had moved forward in that manner and had leaned over with a view to either taking hold of the steering wheel or turning off the ignition she may have reached a position in which the upper portion of her body would have provided a buffer between the chest of the accused and the steering wheel. In that event the remaining portion of her body have been jolted into the front seat by the force of the collision. Furthermore, it is I think clear from the photograph that the front wheels of the vehicle had struck a concrete curb with considerable force before the collision and that may have jolted her legs and lower body forwards a moment before the collision.

40. Whilst I am not wholly persuaded that Mr Johnston's qualifications and experience really equipped him to express some of the opinions which he ventured in his evidence, I do accept that there is a reasonable hypothesis that some portion of Ms Dangerfield's upper body may have been between the accused and the steering wheel at the time of the impact.

41. In these circumstances, Mr Adams submitted a further hypothesis was open, namely, that Ms Dangerfield interfered with the manner in which the vehicle was being driven by the accused. Such interference may have occurred simply because the position which she occupied restricted his ability to turn the wheel or provided a distraction. She may also have attempted to grasp the steering wheel. Indeed, he submitted that that might explain the apparent deviation from the path one would have expected the accused to take had he been in full control of the vehicle. He maintained that it was also possible that she had moved in a manner which obscured his vision.

42. Whatever the merits of these contentions it is apparent that the speed of the vehicle cannot be attributed to the actions of Ms Dangerfield.

43. Mr Johnston expressed the opinion that the vehicle would have been travelling only at 70-80 kilometres per hour prior to braking. However, that estimate was based upon the assumption that there had been an effective skid length of about 20 metres and when his attention was drawn to the photographs which appeared to suggest the combined length of the skid marks on the medium strip and the surface of Heagney Crescent would have been longer than that Mr Johnston was only able to say that he had been looking at marks caused by the other wheel. There is a notation that the skid marks continued for something in excess of 27 metres though that figure had apparently not been obtained by measurement but by "trigonometrical" calculation based upon other measurements obtained by Mr Allen and Mr Johnston expressed the view that the length could not be adequately calculated from those measurements. Mr Johnston's own assessment had been based not only upon his assumption that the skid marks had occupied only about 20 metres but that there had been no antecedent braking which had not produced evident marks on the roadway. Furthermore, he had not been to the scene and whilst he had relied upon average coefficients of friction for bitumen and concrete I do not accept that that provided a completely reliable guide. Even if one were to ignore variations the possibility that the bitumen or concrete surfaces in question differed from the norm, the rate of deceleration would obviously have been dependent on many other factors including the pattern and depth of the tread on the tyres, the extent to which the tyres were inflated, the gradient, the speed and gross mass of the vehicle. Atmospheric conditions might perhaps also play a part especially when, as in this case, the incident occurred in the early hours of a winter morning in Canberra. It was not suggested that there was anything about the quality or intensity of the skid marks from which the rate of deceleration may have been deduced. It is also clear that the vehicle had mounted and then crossed a medium strip then struck the kerb on the other side of Heagney Street with considerable force. M Johnston conceded that the latter impact might have had the effect of slowing the vehicle by perhaps five kilometres per hour before it hit the tree. He said that "we try to take that into account". No similar allowance seems to have been made for any impact with the medium strip though it must be conceded the medium strip was somewhat lower than the kerb and that the vehicle probably struck it on an oblique angle. Whilst I am sure that he did his best with the knowledge he had I am unable to accept the accuracy of his estimate.

44. I accept Mr Williams' evidence that when he got back into the vehicle the accused accelerated rapidly through the gears and that despite Mr Williams' protests he had reached a high speed at a time he reached a slight curve near the end of Baskerville Street. I also accept Mr Williams' estimate that the vehicle was travelling at least 100 kilometres per hour. As Mr Adams fairly pointed out, a car may seem to be travelling more quickly when travelling along a suburban street than when travelling at the same speed upon the highway and a passenger may have a different perception than a driver. Nonetheless, I formed the impression that Mr Williams was a careful and fair witness who had limited his estimate of speed to that of which he was confident. He had been a professional driver some years prior to this incident and 100 kilometres per hour is, of course, the maximum speed at which a driver may lawfully travel on most roads outside built up areas. The fact that the accused had accelerated rapidly through the gears may have given him a further basis of assessment. Furthermore he was obviously acutely concerned about the speed and had protested about it vehemently. There was also some limited corroboration of his estimate from Mr Carlisle who compared the speed of the car which he heard travel past his house with the sound of a car on a freeway.

45. Whilst it is impossible to know precisely what occurred, it seems to me that it is necessary to consider the hypothesis that at least the upper portion of Ms Dangerfield's body may have been in the front of the vehicle in the context of the events that were then unfolding. A man who had been drinking throughout the evening and had taken over the driving only 30 seconds to a minute earlier. He had immediately accelerated through the gears in a manner which Mr Williams described as "aggressive" and despite protestations was continuing at a speed that was obviously dangerous down a suburban street in the dark. A T intersection with trees and houses on the other side was looming ahead. It must have been obvious to anyone in the car that they were in grave danger.

46. In these circumstances it seems to me that if Ms Dangerfield did lean forward in the manner the only rational inference is that she was attempting to turn off the ignition or otherwise intervene to prevent an accident.

47. Mr Adams concedes that such an inference is open on the evidence but maintains that it is equally likely that Ms Dangerfield attempted to wrest the steering wheel from the accused due to anger or animosity. I am unable to agree. There is no evidence that Ms Dangerfield had behaved in a capricious or irresponsible fashion on the night in question. It is true that she had once been resentful of the accused because he had told Mr White of an affair she had had with him, but that had been some years earlier and I accept her evidence that she harboured no continuing ill will towards him. There is certainly no evidence of any display of animosity during the course of the evening. In fact, as I have mentioned, Ms Jones said that there had been some playfulness between them as they approached the vehicle only minutes before the accident. Whilst she conceded that she had sometimes become aggressive after drinking, it was not suggested to her in cross-examination that she had on that night. Nor was it suggested that she was prone to behave irresponsibly in motor vehicles or that there was any other circumstance which may have led her to fling herself towards the controls than for reasons of self preservation. In the circumstances, whilst I accept that there is a reasonable hypothesis that some portion of her body may have come between the accused and the steering wheel, I do not accept that there is a further hypothesis that she may have done so for some capricious or irresponsible reason rather than in an attempt to prevent an accident.

48. In any event, the Crown need only prove that the culpable driving of the accused was a substantial cause of the injuries (see, R v Cornish (1988) 48 SASR 520) and I am satisfied that the speed of the vehicle was a substantial cause.

49. In my view the concept of being incapable of having proper control over a vehicle is not confined to an inability to operate the controls or to steer in a given direction. It extends to matters of perception and judgment. Hence a person may be said to be incapable of having proper control over the vehicle if so under the influence of alcohol as to be incapable of perceiving relevant circumstances or making a sensible judgment as to the maximum safe speed. A similar conclusion would be justified if a person had no real appreciation of the speed or manner of his or her driving.

50. Of course, excessive speed is not always the product of an incapacity to make judgments of this kind. However, in the present case, the manner in which the accused accelerated, the speed he reached, the fact that the car belonged to someone else, the fact that he would not have been familiar with it or known much about its condition, the fact that neither he nor at least two other passengers were wearing seat belts, the nature of the street and the imminence of the T intersection provide ample bases for an inference that the accused was so under the influence of alcohol as to be incapable of perceiving the danger or making sensible judgement as to the maximum safe speed. Hence, he was incapable of exercising proper control over the vehicle in the sense mentioned above. Accordingly, I am satisfied beyond reasonable doubt that even if the fact that the vehicle veered across the median strip and failed to turn onto Heagney Crescent was attributable or partially attributable to some supervening cause the accused was under the influence of alcohol to the requisite extent.

51. The only remaining element of each charge is that of causation. Mr Adams submitted that there was a reasonable hypothesis that but for the acts which Ms Dangerfield might have committed the vehicle might not have deviated from its apparent course and might not have struck the tree. Hence causation cannot be established. If the word "caused" in subs (3) of s 29 meant the sole cause I would be inclined to accept this submission. However, as mentioned earlier, it is sufficient to prove that the culpable driving of the accused was a substantial cause of the injuries.

52. Even if Ms Dangerfield had succeeded in wresting the wheel from him he continued to "drive" the vehicle by virtue of his use of the accelerator and brakes. Indeed, in Peter Francis Affleck Vol 65 Crim R 96, Smart J held that the determining matter in deciding whether a person was a "driver" was control over the means of propulsion. Mr Adams sought to distinguish this decision on the basis that there may have been no consensual arrangement as in Affleck, but I do not accept that even a sudden and unexpected interference with the driving has the consequence that the person in the driver's seat operating the accelerator and brakes ceases to be the driver, or at least a driver. More importantly, by the time any deviation from the intended path of the vehicle had occurred the accused by his culpable driving had already created a situation in which the vehicle was dangerously close to the intersection and approaching it at a dangerously high speed. Even if he were to be absolved of all responsibility for the deviation in course and for his subsequent inability to stop the vehicle before it collided with the tree, his culpable driving was therefore a substantial cause of the grievous bodily harm suffered by Ms Dangerfield and Mr Williams.

53. For these reasons I find each of the charges proven.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 15 October 1999

Counsel for the DPP: Mr A Robertson

Instructing solicitors: ACT Director of Public Prosecutions

Counsel for the defendant: Mr N Adams with Ms G Wong

Solicitor for the defendant: Michael Baumann

Date of hearing: 11-14 October 1999

Date of judgment: 15 October 1999