Dangerous driving laws in Australia

by The FindLaw Team

It is often said that driving is not a right, but a privilege. If we took a moment and thought about it, when a person is behind a vehicle, they are in control of a piece of machinery in which the unit of measurement may be in, ‘tonnes’. So, bearing that in mind, driving offences which results in either the death or injury of a person is treated seriously under Australian law due to the harm that a motor vehicle can cause if not operated properly.

Dangerous driving and the law

All Australian jurisdictions will view a person as committing an offence, if they are found to be driving a vehicle in a manner which results in the death or injury of another person.
If we look to s 318 of the Crimes Act of Victoria as a guide, the legislation outlines the elements in which a person who is operating a vehicle in a culpable manner, causing the death of another:

the driver was reckless: means that a person has consciously and unjustifiably had a disregard to the substantial risk that the death of another person, or the infliction of grievous bodily harm upon another person, may be a result of their driving;

the driver was negligent: means that a person has failed unjustifiably, and to a gross degree, in  observing the standard of care required of a reasonable person in all of the circumstances of the case;

the person was under the influence of alcohol and/or drugs: to such an extent that the person is incapable of having proper control over a motor vehicle.

Negligent driving

In determining whether or not a driver was negligent, the courts will usually seek guidance from legislation, and if we use s 318(2A) of Victoria’s Crimes Act as our example, we can see that the courts will determine if a person has engaged in culpable driving causing death, by proving that:

• a person drove a motor vehicle when fatigued to such an extent, that they should of known, or ought to have known, that there was an considerable risk of falling asleep while driving or of losing control of the vehicle; and
• by driving a motor vehicle, the person failed unjustifiably and to a gross degree, to observe the standard of care of which a reasonable person would have observed in all of the circumstances of the case. 

What if a driver causes death or injury while asleep at the wheel?

Falling asleep at the wheel is one of those occurrences that has the potential to cause serious harm to either the driver, or another person. Obviously, a driver who falls asleep while behind the wheel, is neither acting consciously or voluntarily: So what approach will the law take when considering an instance, where a driver who has fallen asleep at the wheel, causing injury or death? In Jiminez v The Queen, the court observed that:

“… 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. Not only must the period be sufficiently contemporaneous with the time of impact…but the driving during that period must be, in a practical sense, the cause of the impact and death. The relevant period cannot be that during which the driver was asleep voluntarily.”

Driving under the influence of alcohol

In circumstances where a driver has operated a motor vehicle dangerously, the courts will consider the effect of the alcohol as a relevant factor in how a driver handled their vehicle. In R v Ryan, the court ruled, that for evidence to be admissible in regards to the consumption of alcohol, it must show that the driving would have been affected due to the alcohol consumption.

However, the courts may disregard the consumption of alcohol if the amount detected was small, due to the potential that the evidence may have a greater prejudicial effect, when weighed against the probative value (R v Owens; R v Woodward).

Dangerous driving and speeding

All States have enacted anti-speeding campaigns as well as tough legislation, in an attempt to curb lead footed drivers. Unfortunately, the message has not filtered through to all road users, and high speeds can sometimes result in the death or injury of another person. Section 328A(2)(b) of the Criminal Code in Queensland, makes it an offence for a person who is “… excessively speeding or taking part in an unlawful race or unlawful speed trial…”

In ascertaining whether the manner, or speed of the driving was dangerous, we can look to the judgment of R v Hain, where the judges in the New South Wales Criminal Court of Appeal, set out the objective test in determining whether or not, the manner, or speed, of the driving is considered to be dangerous. The judges in Hain stated, that the test to be applied in whether or not a person was driving dangerously to the public, is an objective fixed standard in relation to other users on the road, and whether the driver was aware of the potential danger to other members of the public due to their driving.

Additionally, James J, in R v Bozzola observed, that if the appellant was “… fatigued from driving too far or from having had insufficient rest and whether he was affected by the taking of drugs, while offering possible explanations of his manner of driving, were not really material to whether his manner of driving, judged objectively, had been dangerous.”  

Readers should take note, that a driver may still be judged to be driving dangerously by the courts even if their actions on the road did not result in either injury or death of another person. 

What if a mechanical defect was the cause of death or injury?

If the cause of an accident which resulted in either death or injury was due to a mechanical defect in the motor vehicle, the courts may view that as a defence. Referring back to Jiminez, the court stated:

“[I]t will be a defence to establish an honest and reasonable mistake as to facts which if true would exculpate the driver. Perhaps the most obvious example is where a driver is unaware of the defective condition of his vehicle and believes upon reasonable grounds to be in good working order.”

However, it is also important to be aware, that if a driver knew, or ought to have known, of the mechanical defect, then there may not be a defence available in such circumstances.

This is only a basic overview of dangerous driving laws and does not constitute legal advice. If you have any inquiries in regards to a criminal matter, always seek the assistance of a lawyer.


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