Dangerous driving

Crimes Act 1900 (NSW), s 52A

[5-250] Introduction

The offences involving dangerous driving are contained in s 52A Crimes Act 1900. There are two basic offences depending upon the consequences of the driving: s 52A(1) where death is occasioned, and s 52A(3), where grievous bodily harm is occasioned. There are aggravated forms of each of the basic offences. The matters of aggravation are set out in s 52A(7).

There is a defence available to any of the offences provided in s 52A(8).

Section 52AA contains various procedural matters, particularly in relation to the proof of intoxication. Section 52AA(4) provides for alternative verdicts.

Section 52AB contains an offence of failing to stop and assist after a collision causing death or grievous bodily harm.

[5-255] Dangerous driving

1. 

Generally see King v The Queen (2012) 245 CLR 588 and Special Bulletin 28. See also Criminal Practice and Procedure NSW at [8-s 52A.1]ff; Criminal Law (NSW) at [CA.52A.20]ff.

2. 

The offences in s 52A are strict liability, as to which see Jiminez v The Queen (1992) 173 CLR 572 and the defence of an honest and reasonable mistake of fact that it was safe to drive.

3. 

To “drive” includes being “in control of the steering, movement or propulsion of a vehicle” under s 4(1) Road Transport Act 2013. With regard to a similar definition of “drive” under s 3(1) of the now repealed Road Transport (General) Act 2005, the court in Williams v R [2012] NSWCCA 286; (2012) 229 A Crim R 67 observed at [60] that “there is nothing that extends the operation of that definition beyond that Act”. It was also noted at [60] that: “‘Drive’ is not defined in the Crimes Act [1900]”.

An ability to steer a vehicle is not essential. Control over propulsion, that is, over the mode of moving and stopping the vehicle is sufficient to be a driver: R v Affleck (1992) 65 A Crim R 96 at 98; Williams v R at [62].

4. 

A person does not have to be shown to have been voluntarily and consciously managing and controlling the movement of the vehicle at the precise moment of impact: Williams v R at [67]. Even if the motor vehicle was not being driven dangerously at the precise moment of impact, a preceding period of driving in a dangerous manner may be so nearly contemporaneous with the impact as to satisfy this element of the offence: Williams v R at [67] applying Jiminez v The Queen at 578.

5. 

In Jiminez v The Queen at 584, the High Court said directions given in a dangerous driving case based on tiredness should address:

  • The evidence, if any, suggesting the driver honestly believed on reasonable grounds that it was safe to drive

  • If the jury concludes the driving was dangerous to the public, they must also consider whether the driver honestly believed on reasonable grounds that it was safe to drive

  • The onus of negativing that defence is on the prosecution

  • In cases where the defence case is that there is no evidence the accused had any warning of the onset of sleep, identify the period of driving during which the driving is alleged to be dangerous. In such cases the jury must be informed that if the accused fell asleep, his/her actions while asleep were not voluntary and could not amount to dangerous driving.

6. 

To the extent that one member of the court in Prineas v R [2018] NSWCCA 221 at [44] suggests that it is preferable not to use the phrase “safe for [the accused] to drive” in a dangerous driving case involving sleep, it is contrary to the suggested directions in Jiminez v The Queen.

7. 

“Dangerous” does not require proof of some species of criminal negligence: King v The Queen (2012) 245 CLR 588 at [38].

8. 

“Grievous bodily harm” is “really serious bodily injury”: Swan v R [2016] NSWCCA 79 at [57]. The word “really” indicates “grievous bodily harm” is a more serious form of injury than actual bodily harm: Swan v R at [57]–[62]. Ascertaining what constitutes really serious bodily injury may involve questions of fact and degree: Swan v R at [65]. An inclusive definition of “grievous bodily harm” is also found in s 4(1) Crimes Act.

9. 

As to injury to an unborn child who dies after birth, see R v F (1996) 40 NSWLR 245 or where a child is born prematurely as a result of injuries, see Whelan v R [2012] NSWCCA 147. As to when an infant is “born alive”, see R v Iby (2005) 63 NSWLR 278.

[5-260] Suggested direction — dangerous driving occasioning death

Because of the wide variation of issues which may arise in a dangerous driving trial, the suggested direction is generally based upon the simplest case scenario, that is, an allegation that the accused was driving in a dangerous manner by failing to properly manage and control the vehicle. The trial judge in a particular case must ensure that directions are only given upon issues that have been raised before the jury. It is for the Crown to allege the particulars of the dangerous manner of the driving and the judge should give directions accordingly. The suggested direction assumes that the allegation is the occasioning of death because such an offence must be dealt with on indictment.

The charge against [the accused] is that [he/she] drove a vehicle involved in an impact, which caused the death of [name of victim], and that at the time of that impact [he/she] was driving that vehicle in a manner dangerous to another person or persons. It is not necessary for the Crown to prove any particular person was at risk from the driving. It is sufficient that the driving is dangerous to any person who may be on or about the place where the vehicle is being driven.

To prove the offence, the Crown must establish beyond reasonable doubt each of the following elements of the offence:

1. 

that the accused was the driver of a vehicle; and

2. 

that vehicle was involved in an impact, namely [insert relevant description from s 52A(5) or s 52A(6) but note the circumstances listed are not exhaustive]; and

3. 

the impact caused the death of the deceased; and

4. 

at the time of the impact, the accused was driving the vehicle in a manner dangerous to another person.

If the Crown fails to prove any one of those four elements of the offence you must find the accused “not guilty”.

[If appropriate where the issue of strict liability arises:

5. 

at the time of the driving dangerously the accused had no honest and reasonable belief that it was safe to drive.]

[If the offence is aggravated:

6. 

at the time of the impact, that accused was driving in a circumstance of aggravation [specify the particular aggravation under s 52A(7)].]

First to third elements

[If elements 1-3 are not in issue:

So far as the first three elements are concerned, the Crown relies on the following evidence [set out the evidence].]

[If there is an issue regarding the first element as to whether the accused was driving add:

A person drives a motor vehicle when he or she has management and control over its movement, whether by using the accelerator or gears, or simply by releasing the brakes and allowing gravity to operate. The driving must be the voluntary and conscious act of the accused.]

Fourth element: at the time of the impact, the accused was driving the vehicle in a manner dangerous to another person

The fourth element the Crown must prove beyond reasonable doubt is that the accused was driving in a dangerous manner at the time of the impact. The manner in which a person drives a vehicle includes all matters connected with the management and control of the vehicle when it is being driven, including its speed. Here the Crown alleges the manner of driving was dangerous because [identify the precise manner of driving upon which the Crown relies, including the time period of driving involved]. Whether or not that manner of driving was “dangerous” depends on all the circumstances in which it took place. This includes such factors as the time of day, the nature of the road surface, the weather conditions, and the general area in which the vehicle is being driven.

A person’s management and control of a vehicle may, in some cases, be potentially dangerous to other persons by its very nature, whatever be the circumstances in which the vehicle is being driven. For example, driving a motor vehicle with no effective brakes is an example of dangerous conduct in the use of a motor vehicle, regardless of where and in what circumstances it is being driven. This is because the ability to bring a vehicle suddenly to a stop is essential to the proper management of it.

In other cases, the particular circumstances in which the vehicle is being driven by a person makes the driving potentially dangerous even though the driving may not be dangerous in other situations. For example, driving through a red light in a busy intersection in the middle of a suburban shopping centre on a Saturday morning may be an example of driving which is dangerous because of the circumstances in which the driving occurs. That situation can be compared with driving through a red light on a country road in the early hours of the morning when it is clear that no other vehicle is in the area. In those circumstances driving through a red light might not be considered to be dangerous even though it may be a breach of the traffic regulations. What distinguishes these two examples is the degree of risk of harm to other persons that arises from the manner of driving in the particular circumstances.

The manner of driving will be dangerous if the Crown establishes beyond reasonable doubt that there has been a serious breach of the proper management and control of a motor vehicle and the breach is so serious it creates a real danger to another person or persons in the vicinity. The use of a motor vehicle is always potentially dangerous to some degree simply because it can so easily cause injury to another person in its vicinity. That potential can be minimised where the driver exercises proper control and management of the vehicle so as to avoid an impact with any other person or object. Of course drivers are subject to human frailties and not every driver always exercises all the care and skill expected. But that does not mean that a driver is driving dangerously simply because of such a failure.

The offence of dangerous driving is established where the driver so seriously fails to properly control and manage the vehicle that he or she creates a real danger of harm to other persons in or around the vicinity of the vehicle far exceeding that which arises simply from the normal use of a motor vehicle. Driving in a dangerous manner is a breach of the criminal law whether or not it results in any impact because of the real risk of harm that it creates. Let me emphasise there must be a serious breach of the proper management and control of the vehicle that results in a real danger to others.

You are concerned with the risk of harm arising from the manner of driving, rather than the result of the driving when deciding whether the driving in the particular circumstances was dangerous. So in deciding whether [the accused's] manner of driving was in all the circumstances dangerous you do not take into account the fact there was an impact or the result of the impact, including as it does the death of [the victim]. A person can drive dangerously but by pure good fortune or the skill of another driver, avoid any impact with another vehicle or a person or object in the vicinity of the vehicle. On the other hand a driver may collide with another vehicle or a person on or near the road as the result of some unavoidable and exceptional incident even though the person is driving with proper care and attention. As I said earlier you are concerned with the risk of harm arising from the manner of driving, rather than the result of the driving when deciding whether the driving in the particular circumstances was dangerous.

The test as to whether the conduct of the driver was dangerous is an objective one. The Crown does not have to establish [the accused] knew or realised [he/she] was driving the vehicle in a dangerous manner. [His/her] conduct must be judged according to an objective community standard which applies to all drivers of vehicles. That standard does not take into account any personal characteristics of the driver, for example, his or her experience or inexperience as a driver. A person can be driving dangerously even though that person believes that he or she is doing his or her best to avoid a collision.

In this case the Crown relies upon the following evidence to prove beyond reasonable doubt that the driving was dangerous [set out the evidence].

[If appropriate, where the issue of momentary inattention arises:

Casual behaviour or a momentary lapse of attention by a driver, if it results in potential danger to another person or to other persons, is not outside the offence of dangerous driving merely because it is either casual or momentary. But what must nevertheless be shown in relation to such conduct is that it amounts to a serious breach of the proper management and control by the accused of the vehicle at the time of the impact and in the circumstances in which the driving occurred.]

[Where the Crown relies upon the manner of driving at a period before the impact:

You are entitled, in determining the manner in which the vehicle was driven at the time of impact, to consider the manner in which it was being driven at a point before the impact. Here the Crown relies upon the evidence of [detail evidence of prior driving]. Of course simply because a person is driving in a particular manner at one point of time it does not follow that the person is driving in that same manner at another point of time. You have to consider whether you can safely infer or conclude the manner of driving at the time of the impact from the manner in which the vehicle was being driven at an earlier point in time. Whether that inference can be drawn depends on matters such as a comparison of the surrounding circumstances at the two points in time, such as traffic conditions and the nature of the road, and of course the time delay between the time the vehicle was observed and the time of the impact. In effect the Crown has to prove to you that the manner of driving when the vehicle was seen and at the time of the impact was a continuous course of driving. The Crown must prove beyond reasonable doubt the manner of the driving at the time of the impact and that it was in all the circumstances dangerous.]

Fifth element: issues of strict liability

[If appropriate, where the issue of strict liability arises:

5. at the time of the driving dangerously the accused had no honest and reasonable belief that it was safe to drive.

(a) Mechanical defect

[Note: This direction has to be adapted and modified according to the circumstances of the case. For example, if the accused is aware of the defect in the vehicle the defence will not be made out if the accused did not turn his or her mind to the issue. On the other hand where the accused is driving his or her own vehicle there may be no reason for the accused to believe there was a mechanical or other defect. In that case the defence will be made out even if the accused did not turn his or her mind to the issue because there was no reason for the accused to be aware of the defect.]

The Crown alleges the accused was driving in a manner dangerous because the vehicle was so defective that it was dangerous for anybody to drive it in that condition. The Crown relies upon [detail the defect]. The Crown’s allegation is that, because of that defect, no person, including [the accused], was able to properly control or manage the vehicle, so the simple fact of driving the vehicle was a serious breach of the proper management and control of the vehicle and resulted in a risk of harm to other persons that was so significant the driving was dangerous. In considering whether the driving of a vehicle in that defective condition was dangerous, you do not take into account the knowledge of [the accused] as to any defect in the vehicle. You apply an objective test and, therefore, do not take into account whether [the accused] knew that driving the vehicle created a danger. Nor do you take into account [his/her] skill in attempting to overcome the defect.

However, [the accused] says [he/she] had no knowledge at any time that the vehicle was defective even when [he/she] was driving it. [His/her] case is that [he/she] honestly and reasonably believed it was safe to drive the vehicle. [He/she] relies upon the following facts in support of that contention. [Detail the defence submissions.]

The position then is [the accused] having raised, what is in effect, an answer to the charge, the Crown must prove beyond reasonable doubt that [he/she] did not hold such a belief or, if [he/she] did, it was not reasonable to hold that belief in all the circumstances as known to [him/her]. To negate this claim raised by [the accused], the Crown is required to prove one or the other of those two things.

Whether [the accused] held the belief is a subjective matter. You are concerned with what in fact [he/she] believed at the time of driving. You are concerned with what was or was not in [his/her] mind at the time just before the impact occurred.

[Outline the Crown case that the accused did not hold such a belief.]

If the Crown fails on that issue, so that you at least accept the possibility [the accused] did have the belief that it was safe to drive, then, before you can convict [him/her], the Crown must prove beyond reasonable doubt that such belief was not reasonable in the circumstances as known to [the accused].

Whether it was reasonable for [him/her] to hold that belief is judged according to community standards. You ask yourself what would an ordinary person in the position of [the accused], that is, with [his/her] knowledge and experience, have believed at the time?

[Outline the Crown case that even if the accused held a belief that it was safe to drive the belief was not a reasonable one.]

To conclude in relation to this element, the accused’s case is that [he/she] honestly and reasonably believed that it was safe to drive the vehicle. It is for the Crown to prove beyond reasonable doubt that the accused did not have that belief. If it is possible that [he/she] did have such belief, then the Crown must prove that it was not a reasonable belief in the circumstances known to [the accused].

(b) Accused unconscious eg falling asleep or other medical condition

As I have already explained to you, the Crown must prove [the accused] was driving the vehicle at the time of the impact. I have also told you that this involves [him/her] having management and control over the movement of the vehicle, including of course the steering wheel, the accelerator and the brakes. This means the driving by [the accused] was a willed or conscious act. Here the allegation is that the accused fell asleep and so lost control of the vehicle. If that is so, then on one view, [the accused] was not driving the vehicle at the time of the impact.

However, in such a situation you must consider the position just before [the accused] lost consciousness by falling asleep. Was it dangerous for [the accused] to be driving the vehicle when [he/she] was about to lose consciousness. In looking at whether the driving was dangerous you do not consider what the accused believed or thought about [his/her] ability to stay in control of the vehicle. If you are satisfied beyond reasonable doubt [the accused] did lose control of the motor vehicle because [he/she] lost consciousness by falling asleep, you may find that it was dangerous to drive in a condition where the driver is liable at any time to be overcome by tiredness and fall asleep, however momentarily, while at the wheel of the vehicle.

If you find beyond reasonable doubt [the accused] did fall asleep [or if applicable become unconscious] just before the impact and it was this that caused [him/her] to lose control of the vehicle, then you may have no difficulty in finding [he/she] was driving in a manner dangerous shortly before the impact. But that does not determine the issue of the accused's guilt.

[The accused's] case is [he/she] had no reason to believe [he/she] might fall asleep at the point before losing control of the vehicle. [The accused] contends [he/she] honestly believed it was safe to drive. [Set out the defence arguments.]

The position then is that [the accused] having raised, what is in effect, an answer to the charge, it is for the Crown to prove to you beyond reasonable doubt [the accused] did not hold such a belief, or, if [he/she] did, it was not reasonable to hold that belief in all the circumstances as known to [him/her]. To negate this claim raised by [the accused], the Crown is required to prove one or the other of those two things.

Whether [the accused] held the belief is a subjective matter. You are concerned with what in fact [he/she] believed at the time of driving. You are concerned with what was or was not in [his/her] mind at the time just before the impact occurred.

[Outline the Crown case that the accused did not hold such a belief.]

If the Crown fails on that issue so that you at least accept the possibility [the accused] did have the belief that it was safe to drive, then, before you can convict [him/her], the Crown must prove beyond reasonable doubt that such belief was not reasonable in the circumstances as known to [the accused].

Whether it was reasonable for [him/her] to hold that belief is judged according to community standards. You ask yourself what would an ordinary person in the position of [the accused], that is with [his/her] knowledge and experience, have believed at the relevant time?

[Outline the Crown case that even if the accused held a belief that it was safe to drive the belief was not a reasonable one.]

To conclude in relation to this element, the accused's case is that [he/she] honestly and reasonably believed that it was safe to drive the vehicle. It is for the Crown to prove beyond reasonable doubt that [he/she] did not have that belief. If it is possible [he/she] did have such belief, then the Crown must prove that it was not a reasonable belief in the circumstances known to [him/her].

Statutory presumption regarding intoxication

[Statutory presumption under s 52AA(1) that the accused is presumed to be under the influence if the prosecution proves the prescribed concentration of alcohol was present at the time of the impact.

The law requires you as the jury to act on the basis that an accused person is under the influence of alcohol for the purpose of the offence with which [the accused] is charged if, at the time of the impact causing the victim’s death, there was a concentration of alcohol in the accused's blood of at least 0.15 grams of alcohol in 100 millilitres of blood. Further the law is that the concentration of alcohol that is determined in relation to a sample of the accused's blood which has been analysed within two hours after the impact is for the purpose of the offence the concentration of alcohol in the accused's blood at the time of that impact [where relevant add unless the accused has established that the concentration was less than 0.15 grams of alcohol in 100 millilitres of blood at the time of impact].

There is a certificate of analysis of [the accused's] blood alcohol level taken at [specify time] in evidence before you. That analysis shows the concentration of alcohol in [the accused's] blood was [state result of analysis].You are to act on the basis this was the concentration of alcohol in [the accused's] blood at the time of the impact. As that reading is 0.15 grams [or above], you must reach your verdict on the basis that the accused was under the influence of alcohol at the time of the impact.

Driving under the influence of alcohol means that, because of the affect of the alcohol upon [the accused], [he/she] was no longer capable of, and did not in fact, exercise proper control and management of the vehicle which resulted in the impact alleged in the charge.]

[If applicable, without statutory presumption:

A person is under the influence of alcohol [or drugs] for the purpose of this offence where [his/her] ability to manage and control a motor vehicle is impaired by the voluntary intake of alcohol [or drugs]. A person may be “under the influence” in this sense without being drunk. Whether a person lacks full capacity to control and manage a motor vehicle in that sense, so as to be committing an offence, depends not only on direct evidence of what [he/she] may have consumed before the impact, but also on any inference or conclusion which you may properly draw from the circumstances before the impact including [his/her] manner of driving shortly before and up to the time of the impact. In this respect, the Crown relies upon … [summarise evidence and submissions for the Crown]. The accused, on the other hand, relies on … [summarise evidence and submissions for the accused].]

The manner in which a person drives a vehicle includes all matters connected with the management and control of the vehicle when it is being driven, including its speed. [The directions must identify for the jury the precise manner of driving upon which the Crown relies, including the period of driving involved.]]

Sixth element: if offence is aggravated

[If the charge is an aggravated form of the offence add:

6. The Crown also alleges that this offence was committed in what is called a “circumstance of aggravation”.

This means that in addition to the four elements required to establish the offence, the Crown must also prove beyond reasonable doubt that [specify the particular aggravation under s 52A(7)].]

[Available verdicts where a circumstance of aggravation is charged

If the Crown has failed to establish any one of the first four elements of the offence of dangerous driving — that is, without the circumstances of aggravation — you must find the accused “not guilty”.

If the Crown has established each of the elements of the aggravated offence of dangerous driving beyond reasonable doubt, you should find the accused “guilty” of that offence [unless the statutory defence under s 52A(8) is relied upon].

If the Crown has failed to establish the circumstance(s) of aggravation upon which it relies, but has established all the other elements of the offence, you should find the accused “guilty”, [unless the statutory defence under s 52A(8) is relied upon].]