Dangerous Driving Flashcards
In what Section of the Road Transport Act is Dangerous Driving (simpliciter) found?
Section 117 of the Road Transport Act.
“Negligent, furious or reckless driving”
(1) A person must not drive a motor vehicle on a road negligently.
Maximum penalty—
(a) if the driving occasions death—30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence), or
(b) if the driving occasions grievous bodily harm—20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence), or
(c) if the driving does not occasion death or grievous bodily harm—10 penalty units.
(2) A person must not drive a motor vehicle on a road furiously, recklessly or at a speed or in a manner dangerous to the public.
Maximum penalty—20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence).
(3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following—
(a) the nature, condition and use of the road on which the offence is alleged to have been committed,
(b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road,
(c) any obstructions or hazards on the road (including, for example, broken down or crashed vehicles, fallen loads and accident or emergency scenes).
(4) In this section—
grievous bodily harm includes any permanent or serious disfigurement.
What is the definition of Secondary Impact?
This is where your actions cause someone else to have a crash.
“A vehicle is also involved in an impact occasioning death or grievous bodily harm if:
(a) Death or GBH occasioned through the vehicle causing an impact between other vehicles, or between another vehicle and any object or person, or causing another vehicle to overturn or leave a road AND
(b) the prosecution proves the vehicle caused the impact.”
Don’t need to prove intent or foresight of the driver who did the action to cause the event.
One of the proofs of Section 52A of the Crimes Act (Dangerous Driving causing Death or GBH of another) is “death or GBH of another” how is that defined?
The key word is “of another” (so causing GBH to yourself after an accident is not appropriate).
Section 4 of the Crimes Act “Grievous Bodily Harm” includes:
(a) the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and
(b) any permanent or serious disfiguring of the person, and
(c) any grievous bodily disease.
Have to establish a nexus or a casual connection between death or impact.
The Crown [does not] have to establish that the death or grievous bodily harm was caused by the accused’s condition or by the speed or manner of driving the vehicle: R v F (1956) 74 WN 211 at 212
R v Hain found what in relation to “manner dangerous to another”
“The test is an objective standard fixed in relation to other users of the road whether the potentiality in fact of danger to the public is realised by the driver of the motor vehicle or not”.
R v Evans found what in relation to “manner dangerous to another”
“… if a man in fact adopts a manner of driving which the jury think was dangerous to other road users in all the circumstances, then on the issue of guilt it matters not whether he was deliberately reckless, careless, momentarily inattentive, or even doing his incompetent best. It is highly relevant if it ever comes to sentence, and equally relevant in the mind of any person who has to consider whether a prosecution is justified or not”.
When it comes to Dangerous Driving, what does Circumstances of Aggravation include?
(a) the prescribed concentration of alcohol was present in the accused’s breath or blood, or
(b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road, or
(c) the accused was driving the vehicle to escape pursuit by a police officer, or
(d) the accused’s ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination).
What does the case of Jiminez v R say in relation to “Automatism”
“If the applicant did fall asleep, even momentarily, it is clear that while he was asleep his actions were not conscious or voluntary (an act committed while unconscious is necessarily involuntary) and he could not be criminally responsible for driving the car in a manner dangerous to the public: Jiminez v R [1992] HCA 14 at [9]
… where the question is whether a driver who falls asleep at the wheel is guilty of driving in a manner dangerous to the public, the relevant period of driving is that which immediately precedes his falling asleep: Jiminez v R [1992] HCA 14 at [12]
Section 52A of the Crimes Act (Dangerous Driving) was inserted into the Act as a separate charge to s117 of the Road Transport Act (Negligent, Furious our Reckless Driving) - as a result of which case?
R v S (1991) “to the public”.
This case was where the Deft and the deceased were at a 21st on a country property. A racing circuit was constructed in a paddock and the guests participated in races. The respondent and 2 others got into a vehicle driven by the Defendant “S”. They did some laps of the circuit then moved to a nearby paddock and did some donuts. Isolated as they were, the Court held that for the purpose of the proceedings there was no danger to anyone other than the Defendant and his passengers. Whilst in the paddock the vehicle overturned, killing one of the passengers.
Dangerous driving is not made out - not on a road, not dangerous “to the public”. ERGO s52A was introduced.
Simpson v Peat (1952) considers “Negligent Driving” as being?
Was the accused exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances?
What is Section 52A of the Crimes Act?
Dangerous Driving occasioning Death/GBH
- Vehicle
- Driven by the Accused
- Involved in an impact
- Occasioning the (ss1) death / or (ss3) GBH
- At the time of the impact: (YOU NEED THESE 3 THINGS)
- Under the influence of intoxicating liquor or of a drug; or
- At a speed dangerous to another person or persons; or
- In a manner dangerous to another person or persons.
“Road” is NOT a proof of this offence.
As this is a Crimes Act offence, the definitions also change (ie: vehicle definition is different).
What is the Crimes Act definition of “Vehicle” (for the purposes of Section 52A)?
“Vehicle” means:
(a) any motor car, motor carriage, motor cycle or other vehicle propelled wholly or partly by volatile spirit, steam, gas, oil, electricity, or by any other means other than human or animal power, or
(b) a horse-drawn vehicle,
Whether or not it is adapted for road use, but does not mean a vehicle used on a railway or tramway.
Where is the definition of “Driver” found?
Under the Road Transport Act NOT the Crimes Act. Because there is no definition found in the Crimes Act, for Section 52A, caselaw is used for drive/driver (Williams v R and R v Affleck).
Williams v R [2012] NSWCCA: “Drive is defined in legislation as including being in control of the steering, movement or propulsion of a vehicle”, but there is nothing that extends the operation of that definition beyond that Act. Drive is not defined in the Crimes Act.
One of the proofs of Dangerous Driving is “At the time of impact” - where is this defined?
This is positively defined in the Act. Section 52(5) states that when vehicle is involved in impact for the purposes of this section, the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following—
(a) the vehicle overturning or leaving a road while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise),
(b) an impact between any object and the vehicle while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise),
(c) an impact between the person and the vehicle,
(d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact,
(e) an impact with anything on, or attached to, the vehicle,
(f) an impact with anything that is in motion through falling from the vehicle,
(g) the person falling from the vehicle, or being thrown or ejected from the vehicle, while being conveyed in or on the vehicle (whether as a passenger or otherwise),
(h) an impact between any object (including the ground) and the person, as a consequence of the person (or any part of the person) being or protruding outside the vehicle, while the person is being conveyed in or on the vehicle (whether as a passenger or otherwise).
What is “Secondary Impact”
A vehicle is also involved in an impact occasioning death of GBH if:
(a) Death or GBH occasioned through the vehicle causing an impact between other vehicles, or between another vehicle and any object or person, or causing another vehicle to overturn a road; AND
(b) The prosecution proves the vehicle cause the impact.
One of the proofs of Section 52A is “Under the influence of intoxicating liquor or drug” - how does Section 52AA relate to this?
Section 52AA is the section involving the procedural matters
52AA(1) Presumption as to intoxication
For the purposes of section 52A, the accused is conclusively presumed to be under the influence of liquor if the prosecution proves that the prescribed concentration of alcohol was present in the accused’s breath or blood at the time of the impact occasioning death or grievous bodily harm. (This can be DUI observations - levels not needed).
52AA(2) Evidence of intoxication—alcohol
For the purposes of section 52A, evidence may be given of the concentration of alcohol present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm as determined by a blood analysis carried out in accordance with Part 4 of Schedule 3 to the Road Transport Act 2013.
(3) Time of intoxication
A concentration of alcohol determined by the means referred to in subsection (2) is taken to be the concentration of alcohol in the accused’s blood at the time of the impact occasioning death or grievous bodily harm—
(a) if the blood sample that was analysed was taken within 2 hours after the impact, and
(b) unless the accused proves that the concentration of alcohol in the accused’s blood at the time of the impact was less than the prescribed concentration of alcohol.
(3A) Evidence of intoxication—drugs
For the purposes of section 52A, evidence may be given of the concentration of a drug (other than alcohol) present in the accused’s blood or urine at the time of the impact occasioning death or grievous bodily harm as determined by a blood or urine analysis carried out in accordance with Part 4 of Schedule 3 to the Road Transport Act 2013.
(3B) Time of intoxication
A concentration of a drug (other than alcohol) determined by the means referred to in subsection (3A) is taken to be the concentration of the drug in the accused’s blood or urine at the time of the impact occasioning death or grievous bodily harm—
(a) if the blood or urine sample that was analysed was taken within 4 hours after the impact, and
(b) unless the accused proves that there was no such drug in the accused’s blood or urine at the time of the impact.
For this section, “prescribed concentration of alcohol” is high range or above (0.15 or higher).
