DRIVE IN A MANNER DANGEROUS19-Mar-2011 Law Article by: Geoff Harrison | Sydney Criminal Barrister | Sydney Criminal Lawyer | Published 19/3/2011
The offence of Driving in a Manner Dangerous to the public is found within s42(2) of the Road Transport (Safety and Traffic Management) Act 1999 (‘the Act’) – which is set out below. The maximum penalty for this offence is a fine of 20 penalty units ($2200) and/or 9 months imprisonment for the first offence or 30 penalty units ($3300) and/or 12 months imprisonment for a second or subsequent offence. This offence also carries an automatic disqualification period upon conviction – for a first offence the person is automatically disqualified from driving for 3 years with the magistrate having a discretion to reduce this disqualification period to a minimum of 12 months or for a second or subsequent offence the automatic disqualification is 5 years with a minimum of 2 years (s188(2)(d) and s188(3)(d) Road Transport (General) Act 2005).
The elements of the offence being:
1. A person
2. driving a motor vehicle
3. in a manner dangerous
4. to the public
5. on a road or road related area.
The element relating to “manner” of driving includes all matters connected with the management and control of a car by a driver. For the driving to be “dangerous”, the danger must be real either actually or potentially and not speculatively - with the test being a purely objective test hence, the intent of the driver is irrelevant: R v Conventry (1938) 59 CLR 633. Or put another way: “The test to be applied in determining whether the management and control of the vehicle constituted driving in a manner which was dangerous to the public is an objective standard fixed in relation to other users of the highway, whether the potentiality in fact of danger to the public is realised by the driver of the motor vehicle or not.”: R v Hain (1966) 85 WN (Pt 1) (NSW) 7 at 10 .
As described in Conventry (ibid) to constitute the offence of driving in a manner dangerous - more than mere negligence must be demonstrated:
Any departure from the full standard of reasonable care, however transitory, and however slight the risk may be, is properly described as negligence. It is desirable to point out that the most careful and skilful of drivers may allow his attention to wander, or do a foolish thing through inadvertence, and that this may be "blameworthy"; but, then being what they are, negligence of this kind is, more or less, on a par with pure misadventure. It is a fair risk of the road — in so far as ordinary people are frequently careless, and very few are always careful the charge of driving to the danger of the public involves more than this. It implies conduct which is open to grave censure as involving the plain threat of serious injury to other people.
Casual behaviour and momentary lapses of attention may amount to driving in a manner dangerous: R v Coventry (1938) 59 CLR 633 at 638 and LKP (1993) 69 A Crim R 159.
As noted by s42(3) of the Act the court is to have regard to all of the circumstance of the case with the section providing an ‘inclusive’ criteria or circumstances to be considered such as inter alia, the nature and condition of the road etc.
Section 42(2) is set out below – note the section contains three other offences apart from driving in a manger dangerous to the public namely, driving furiously, recklessly and at a speed dangerous to the public.
ROAD TRANSPORT (SAFETY AND TRAFFIC MANAGEMENT) ACT 1999 - SECT 42
42 Negligent, furious or reckless driving
(1) A person must not drive a motor vehicle negligently on a road or road related area.
(a) if the driving occasions death-30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence), or
(b) if the driving occasions grievous bodily harm-20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence), or
(c) if the driving does not occasion death or grievous bodily harm-10 penalty units.
(2) A person must not drive a motor vehicle furiously, recklessly or at a speed or in a manner dangerous to the public, on a road or road related area.
Maximum penalty: 20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence).
(3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following:
(a) the nature, condition and use of the road or road related area on which the offence is alleged to have been committed,
(b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road or road related area.
(4) In this section: "grievous bodily harm" includes any permanent or serious disfigurement.