Facing a Dangerous Driving Charge?

In the case of R v Boll (1983) 33 SASR 321, a defendant drove through an intersection and struck and killed a motorcyclist. The defendant did not see the intersection due to inattention when he was leaning down and attending to a cassette player.

The Court found that the circumstances of the offending were at the lowest end of the scale. On the prosecution’s appeal against sentence, a $400 fine was left unchanged, but the period of disqualification was increased from 12 months to two years.

There is no hard and fast rule as to what speed is dangerous. Each case depends on the actual or potential danger created by the driver’s speed (Armstrong v Twiggs (1983) 2 MVR 217).

Zanker v Modystach (1990) 54 SASR 183, emphasised that, while speed may appear extremely high, whether it is dangerous depends on the actual or potential risk to the public.

Although the driver allegedly travelled at about 156 km/h in a 110 km/h zone, the deserted nature of the road and lack of surrounding hazards led the court to conclude it was not “speed dangerous”.

In Merrill v Police (SA) (1996) 24 MVR 555, the driver drove at 171 km/h on a country road in a 110 km zone because his wife was sick.

The road was straight, bitumen surfaced and slightly undulating. There was light rain, visibility was fair, the country was open and the defendant was a skilful driver.

On appeal against conviction, it was held that none of these factors could insulate the defendant from the risk of an accident while driving at such a speed.

In R v White (1951) 51 SR (NSW) 188, the accused was charged under s 54 of the Crimes Act 1900 (NSW) with negligence causing grievous bodily harm.

The defendant was driving a car at high speed across the Sydney Harbour Bridge and moved onto the incorrect side of the road to overtake a vehicle travelling in the same direction.

The defendant struck an oncoming vehicle causing the oncoming vehicle to collide head on with a fourth vehicle. An occupant of that vehicle was seriously injured as a result.

On appeal, it was held that the direction to the jury that it was important to determine if the degree of negligence showed that the defendant had acted with “reckless disregard of other people’s lives and limbs” dealt adequately with the degree of negligence to be proved by the prosecution.

In R v Parker (1957) 41 Cr App R 134, during a busy time of day, the appellant was driving along a main street when he came to a dangerous crossing.

He crossed over against the lights when they were showing red in his direction, and came into collision with a motor bus, which had the right of way.

The rear end of the appellant’s car was flung around and struck and killed an old man. The Court held that a momentary disregard of safety precautions, or a momentary act of negligence on the part of the driver of a motor vehicle, may amount to dangerous driving.

If a driver has prior knowledge of a defect, which subsequently causes the dangerous manner of driving, a conviction is likely.

If a driver can show that he or she did not know of a mechanical defect, which deprived them of control of the vehicle, and that the defect was not reasonably discoverable, such evidence may provide a defence that the prosecution must disprove.

Even if a driver possesses above-average skill or the vehicle has enhanced safety features, this is irrelevant to whether the speed or manner of driving is dangerous. In Police v Gibbs [1999] SASC 14, the court rejected arguments that superior vehicle performance or advanced driving expertise could “insulate” a driver from liability.

Courts treat “road rage” with particular severity due to its intentional nature and high risk to the public. These cases often involve deliberate harassment or ramming of other vehicles:

1. D’Aniello v Police [2009] SASC 172 – Four months’ imprisonment (suspended) and 18-month disqualification for deliberately colliding with another car.
2. Police (SA) v Holer [2016] SASC 187 – Confirmed a prison sentence where an offender repeatedly rammed another vehicle carrying children.
3. In C,SM v Police [2016] SASC 167, a young driver received a significant period of disqualification for an incident involving intimidating behaviour on the road, reflecting a strong stance against road rage, irrespective of age.\
4. Even lower-level offences such as driving without due care can lead to a recorded conviction where aggression or intimidation is involved. In Aslin v Police (SA) [2017] SASC 179, the court upheld a magistrate’s decision to record a conviction for “road rage” conduct, underscoring the gravity of such behaviour.

In R v Thompson (1975) 11 SASR 217, the defendant had inadequately fastened a trailer to a car and driven on the road. The trailer became detached and collided with another car driving in the opposite direction causing the death of the passenger in that car.

In dismissing the  driver’s appeal, the Court of Criminal Appeal of South Australia held that it was not an essential element of the offence that the accused should have adverted to the possible consequences of his manner of driving and been indifferent to them. Inadvertent negligence, if sufficiently serious, was enough to constitute the offence.

Sometimes the wrong person can be charged with driving at a speed dangerous. This occurs where prosecution make errors or where someone else uses your identity Other times, it may even occur if you share a vehicle or allow friends or family to drive your car.

Duress is a defence to dangerous driving in South Australia and set out in section 15D of the Criminal Law Consolidation Act 1935 (SA), which replaces the common law defence of duress. A person can be acquitted of an offence on the basis of duress if they were “forced” to commit the offence by another person. This is different to cases involving threats “constituted by other circumstances” i.e., the defence of necessity or compulsion below.

A defendant may raise necessity if circumstances justified dangerous driving, provided those circumstances are genuine and the response is proportionate (Police v Bayley (2007) 96 SASR 555).

This also sometimes referred to as the defence of compulsion involving threats  “constituted by other circumstances” giving rise to a sudden and extraordinary emergency.

For example, where a defendant drives away at high speed to elude a pursuer in another car in order to resist actual or unlawful violence threatened to him.

Automatism may be described as “action without any knowledge of acting, or action with no consciousness of doing what was being done”. If the defence of automatism is raised, the onus on the prosecution to prove all the elements of the offence includes the onus to prove the conscious perpetration of the offence.

A state of automatism may be produced in a person by a traumatic blow to the head, such as in Cooper v McKenna; Ex parte Cooper [1960] Qd R 406, where a magistrate dismissed a complaint of dangerous driving. The driver’s actions were involuntary because he suffered from a concussion caused by a severe blow on the head received in a football match a few hours earlier.

An accused person may rely on facts that show that he or she was in a state of automatism at the time of alleged criminal acts. However, it is a defence the courts will closely scrutinise.

In R v Sandoval (2010) 11 DCLR (NSW) 385,  collision, the accused faced charges of causing grievous bodily harm by dangerously driving to escape police. While police pursued the accused’s vehicle, the accused allegedly lost control and collided with another car, inflicting serious injuries on its occupants.

A key element of the prosecution’s case was that the accused knew the police were in pursuit. However, the Court found that the Crown did not prove, beyond reasonable doubt, that the accused possessed such knowledge at or before the time of the collision.

Crucially, expert evidence demonstrated the accused suffered from a psychotic episode at the relevant time and did not appreciate the wrongfulness of the conduct.

Sections 45(4a) and 45(5) of the Road Traffic Act 1961 provide a specific defence for police officers and certain emergency workers who drive in a manner that might otherwise be considered dangerous, if they act in accordance with their employer’s directions and reasonably believe the situation justifies their actions.

Police often rely on speed detection devices. Under section 175 of the Road Traffic Act 1961 (SA), certificates of accuracy shift the burden onto the defence to raise a reasonable doubt. However, credible contrary evidence (such as expert testimony on vehicle acceleration) may displace this presumption.

Expert evidence must be based on credible, properly established facts. If key assumptions are unsupported, the evidence may carry little weight. See Pinkerton v Police [2006] SASC 341, where the court emphasised the need for reliable factual assumptions underpinning expert conclusions.

A first offender may seek a declaration that the offence is “trifling,” allowing a reduced period of licence disqualification.

Courts consider whether the danger was merely technical or truly negligible.

Examples include Owen v Connellan (1991) 53 A Crim R 236 and Speake v Police (2008) 51 MVR 519, where short bursts of speed and unusual mitigating factors led to trifling findings.

However, deliberate breaches or significant risks typically fail.