Driving in a Manner Dangerous

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.