Traffic 3

Question 1

What are the elements of Negligent Driving?

Answer 1

Accused, drove, motor vehicle, road, negligently

Question 2

What is the test in relation to negligent driving and what is the case?

Answer 2

Whether the accused was exercising that degree of care and attention that a reasonable and prudent driver woud exercise in the circumstances (Simpson v Peat [1952] 2 QB 24)

Question 3

What is the case of Simpson v Peat [1952] and is it a subjective test or an objective test?

Answer 3

Involves both a subjective and objective view of the circumstances

Question 4

Which case outlines what a reasonable and prudent driver is and how does it define such a driver?

Answer 4

Richardson v Police [2012] SASC 20 at [14] - Obligation to drive with due care is to be determined objectively. Obligation to drive with due care is the duty to exercise the standard of care which one would expect of a reasonable and prudent driver in the like or similar circumstances.. The reasonably prudent driver is expected to drive with a defensive outlook. ie. a lookout “that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger”.

Question 5

What is the legislation for Negligent Driving

Answer 5

S 117(1) Road Transport Act - A person must not drive a motor vehicle on a road negligently.
117(1) (a) driving occasions death (30 PU or 18 months if 1st offence)
117(1) (b) driving occasions GBH (20 PU or 9 months if 1st offence)
117(1) (c) driving not occasion death or GBH (10 PU)

Question 6

What case law is available under s117 (Road Transport Act) when multiple people are injured or die?

Answer 6

DPP v Kevin Frederick Edward Gardner & Anor [2013] NSWSC 557

Question 7

What are the elements of dangerous driving?

Answer 7

Accused, drove, motor vehicle, road, furiously/recklessly/in a speed dangerous/in a manner dangerous to the public.

Question 8

What is the legislation for Dangerous Driving

Answer 8

S 117(2) Road Transport Act - 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. (20 PU or 9 months 1st offence)

Question 9

Is it an objective or subjective test used when determining whether the accused is driving in a manner dangerous to the public and what case law defines the standard used?

Answer 9

The driving is considered to an objective standard to determine whether it was dangerous to the public. R v Coventry (1938) 59 CLR 633 - It’s not about the psychology of the defendant and whether he was indifferent or not to public safety. The standard is an objective standard. The standard is impersonal in that it does not vary with individuals. It is universal in the sense that it is applicable to all people who drive motor vehicles. Driving at a speed, or in a manner, which is dangerous to the public described the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence.

Question 10

What is relevant case law when determining if driving was in a manner dangerous to the public?

Answer 10

R v Coventry (1938) 59 CLR 633 - Driving in a manner dangerous to the public is established if it be proved the acts of the driver create a danger, real or potential, to the public. Whether such danger exists depends on all the circumstances of case e.g. character and condition of roadway, amount and nature of traffic that might be expected, speed of motor vehicle, observance of traffic signals and condition of the driver’s car.

Question 11

Is casual (casual behaviour) or momentary inattention (lapses of attention) an excuse for driving in a manner dangerous to the public?

Answer 11

No. R v Coventry (1938) 59 CLR 633 - it is not an excuse if that casual behaviour or momentary lapse of attention causes a danger to the public. Can still constitute the offence.

Question 12

Does sudden action in a critical situation, even if it’s mistaken, constitute driving in a manner dangerous to the public? - cite case law

Answer 12

No it “may” not, according to R v Coventry (1938) CLR 633.

Question 13

Is the experience level of the driver a determinative factor

Answer 13

No it is not necessarily a determinative factor - R v Evans (1962) 47 Cr App Rep 62. If driver adopts a manner of driving that was dangerous to other road users it doesn’t matter whether he was deliberately reckless, careless, momentarily inattentive or even doing his incompetent best.

Question 14

What is the relationship between Dangerous Driving in s117 Road Transport Act and s52A Crimes Act? Use case law to support it.

Answer 14

R v Giorgianni (1985) 59 ALJR 461. “Under s52A the occasioning of death or grievous bodily harm to a person is merely a consequence which serves to convert one offence, such as driving in a manner dangerous to the public, into the more serious offence of culpable driving

Question 15

What connection can you draw between speed dangerous and manner dangerous to the public? Support with case law

Answer 15

R v De Keyser (1987) 9 NSWLR 709 - charge of culpable driving under s52A Crimes Act. The conduct supporting a conviction of driving at a speed dangerous to the public may also support a conviction of driving in a manner dangerous to the public. Where speed is only relevant factor relied upon, accused MAY be convicted of dangerous driving by driving in a manner dangerous to any person(s)

Question 16

If a vehicle is simply exceeding the speed limit is that enough to charge with speed dangerous?

Answer 16

No. Usually not sufficient. Speed usually needs to be quite excessive with scant regard for other actual or potential road users.

Question 17

Could you charge someone with speed dangerous if they were driving at less than the speed limit?

Answer 17

Yes for example driving through a crowd of people at 40kph. Or 60kph through narrow city lane.

Question 18

When would you generally charge with speed dangerous rather than manner dangerous?

Answer 18

When speed is the only dangerous factor about the defendants driving at time of impact. Manner dangerous encompasses speed as well as other relevant factors.

Question 19

How does alcohol go towards manner dangerous?

Answer 19

The driver of a motor vehicle who is adversely affected by alcohol is a circumstance relevant to the issue of whether he was driving dangerously. Evidence is of probative value and admissible. May be so depending on circumstances even if they were below a legal PCA limit.

Question 20

Where are the deeming provisions found in traffic legislation?

Answer 20

Sections 136 to 141, 257 and clauses 31 to 36 of schedule 3 of the Road Transport Act

Question 21

Could you be charged with manslaughter if someone dies because of your dangerous driving?

Answer 21

Yes it’s possible. Manslaughter: A man is guilty of involuntary manslaughter when he intends an unlawful act and one likely to do harm to a person and death results which neither foreseen nor intended - R v Creamer [1966]…. Manslaughter is seen as having a higher standard than s52A of Crimes Act

Question 22

Break down the proofs of negligent driving

Answer 22

Drive: be in control of the steering, movement or propulsion of a vehicle

Motor vehicle: A vehicle that is built to be propelled by a motor that forms part of the vehicle

on a road: an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles (+road related area)

at a speed or manner dangerous: case law

Question 23

Can you amend a particular in an indictment under section s117(1)?

Answer 23

Yes because it is drafted as one offence. This is as opposed to say s527C(1) (goods in custody) which is 4 separate offences

Question 24

What are the elements of dangerous driving occasioning death / GBH?

Answer 24

• Vehicle
• driven by accused
• involved in impact
• occasioning the (ss1) death / (ss3) GBH
• at the time of the impact:
  a) under the influence of intoxicating liquor or of a drug or
  b) at a speed dangerous to another person or persons or
  c) in a manner dangerous to another person or persons

10 years imprisonment

or alternatively:
Driver, drove, vehicle, involves in an impact that killed another person or caused GBH to another person; At the time of the impact the driver was driving a vehicle; under the

Question 25

What is automatism?

Answer 25

Involuntary movement of the body or limbs of a person

Question 26

Does driving have to be a voluntary activity?

Answer 26

Yes - Edwards v Macrae

Question 27

Can Automatism be used as a defence to driving (specifically drink driving)?

Answer 27

Automatism = involuntary movement of the body or limbs of a person.

If this defence is raised, then the Prosecution to exclude from evidence beyond reasonable doubt

Question 28

Jimminez v The Queen (1992) CLR

Answer 28

1. A person who is asleep is not the driver whilst asleep
2. The prosecution is entitled to look backwards in time and examine the drivers behaviour leading up to the point of falling asleep to determine negligence / Dangerous Driving

Question 29

Is death or grievous bodily harm in s52A of the crimes act in relation to the driver of the vehicle?

Answer 29

No it applies to “another person”. This is different to

Question 30

What act deals with cautioning by police officers?

Answer 30

Section 139 of the Evidence Act

Question 31

What is the relevant legislation in relation to cautioning people - summarise each of the subsections.

Answer 31

Section 139 of the Evidence Act - subsection 1, 2 and 3 sets out the circumstances when an investigating official needs to caution people.

s139(1) - For the purposes of s138(1)(a), STATEMENT MADE or ACT DONE by a person during QUESTIONING is obtained improperly if:

a) person under arrest for offence AND
b) questioning by investigating official who was empowered to arrest person AND
c) before starting questioning did not caution person

s139(2) For the purposes of s138(1)(a) STATEMENT MADE or ACT DONE by a person DURING QUESTIONING is obtained improperly if:

a) questioning done by a person who did not have power to arrest AND
b) statement made or act done AFTER investigator formed belief there was sufficient evidence to establish person had committed an offence AND
c) before statement made or act done, investigator did not caution the person

s139(3) caution given in / translated into language person can communicate in. Doesn’t have to be in writing unless can’t hear properly.

Question 32

Do police need to caution at all times? If not when not and which section applies?

Answer 32

s139 (4) of Evidence Act - ss(1) , (2) and (3) of s139 do not apply when an Australian law requires the person to answer questions or do things (e.g. under traffic legislation which says the person MUST do certain things and therefore no caution required in those circumstances)

Question 33

Is there a common law presumption of a right to silence?

Answer 33

Yes

Question 34

For the purpose of cautioning an offender when is a person classed as being under arrest? Cite legislation

Answer 34

s139 (5) of the Evidence Act - for purpose of ss(1) of s139 a person is under “arrest” if person in company of investigator for purpose of being questioned if:

a) investigator believes sufficient evidence to establish person committed offence that is subject of questioning OR
b) investigator wouldn’t allow person to leave if they wanted to do so
OR
c) investigator gave person reasonable grounds for believing that the person couldn’t leave even if they wanted to.

Question 35

When considering when to caution someone in accordance with the Evidence Act, when is a person not considered to be under arrest for the purpose of a caution? Consider the multiple reasons for when a person is classed as being under arrest.

Answer 35

s139(6) of the Evidence Act - A person is not treated as being under arrest ONLY because of subsection (5) if:

a) investigator is performing functions in relation to person or goods entering/leaving Australia and investigator doesn’t believe person has committed an offence against commonwealth law
b) investigator is exercising a power under Australian law to detain and search OR to require the person to provide information or to answer questions (think about traffic legislation where they must answer certain questions kind of seems similar so s139 (4))