Dangerous Driving Causing Death

It is an offence to drive a vehicle in a culpably negligent manner, recklessly or at a dangerous speed, where that driving results in a person’s death.

This offence is contained in 19A(1) of the Criminal Law Consolidation Act 1935.

Causing death by dangerous driving is a very serious offence. We highly recommend that you seek legal advice as soon as possible after the accident, even before being charged by the police where possible.

At Caldicott Lawyers, our team of specialist defence lawyers have extensive criminal law experience and have defended many clients who have been charged with causing death or serious harm by dangerous driving.

The maximum penalty depends on whether or not it is an aggravated offence.

An aggravated offence is where one of the following applies:

• you were attempting to escape pursuit by a police officer;
• you were racing;
• you were disqualified from driving;
• there was prolonged bad driving;
• you were drink driving and had a blood alcohol reading of more than 0.08 grams;
• you were drug driving;
• you were driving at more than 45km/hr over the speed limit; or
• you had an illicit drug in your system.

For a basic offence, the maximum penalty is 15 years imprisonment.

For an aggravated offence, or for a second offence, the maximum penalty is life imprisonment. You may also be disqualified from driving for 10 years or more.

Causing death by dangerous driving is a very serious offence and we highly recommend that you seek legal advice as soon as possible after the accident, even before being charged by the police if possible. Many cases are won or loss in the preparation of the case.

Deciding whether or not to plead guilty to causing death by dangerous driving has important implications and should be made after proper discussions with a criminal lawyer.

If you do decide to plead guilty to an offence of dangerous driving causing death we can assist you to get the best result possible.

Our team of specialist criminal lawyers have extensive criminal law experience and know the best way to present your case before each of the Magistrates in the State. The results they obtain speak for themselves.

Call 08 8120 3783 to make an appointment with one of the knowledgeable lawyers at Caldicott Lawyers for assistance with your driving matter.

If any of the following are applicable to your circumstance you may have a defence and you should seek legal advice as a matter of urgency.

You weren’t driving

In some cases, the wrong person is charged with an offence. There are a variety of ways in which this can occur. It may be that there was an administrative error on the prosecution’s behalf or perhaps the offender was carrying your identification which they presented to police. Regardless, it is a complete defence to this charge if it can be shown that you were not driving the vehicle.

You were driving with due care

The reality is that sometimes accidents happen in spite of our best efforts to avoid them. If it can be shown that you were driving to the standard of care that is to be expected of a person with your level of skill, you may have a defence to this charge.

You were carrying out your duties as an emergency worker

Section 19A(10) of the Criminal Law Consolidation Act 1935 provides an exclusive avenue of defence for emergency workers. You will have a complete defence to this charge if it can be shown that you were acting in the course of your employment and in accordance with the directions of your employer. You will also be required to prove that you were acting reasonably in the circumstances.

Honest and reasonable mistake of fact (Proudman vs Dayman Defence)

If you genuinely believed that your driving was safe under the circumstances and there is evidence to indicate that it was reasonable for you to hold this belief then you may have a defence to this charge.

Duress

It is a complete defence to this charge if we can show that you were acting under duress. That is, you were acting as a result of violence or some other threat, against you. The Court will need to be presented with evidence to show that you were coerced into the act by a third party, effectively rendering you an instrument of someone else’s criminal conduct.

Necessity/Emergency

The common law defence of necessity operates where the circumstances at hand (natural or human threats) require you to break the law in order to avoid even more dire consequences. There is, thus, some overlap with the defence of duress. It will need to be shown that you believed on reasonable grounds that you were placed in a situation of imminent peril. You may have a medical justification or it may be the case that you were acting in the course of protecting yourself or someone else.

Essentially, the Court will need to weigh up the act you have committed against the harm you would have experienced had you not acted in that manner. The Court will also need to be convinced that the act was proportionate to the potential harm.

Mental impairment

The law recognises that in some cases people will not be capable of evaluating the nature and quality of their conduct or more categorically, they will not know what they are doing is wrong. If it can be shown that you were suffering from some sort of mental disease, disorder or disturbance, as distinguished from a mere lack of self-control or impulsiveness, then you may have a defence to this charge.

Mental impairments may be either permanent or non-permanent and may include disorders such as:

• Schizophrenia
• Hyperglycaemia
• Psychomotor epilepsy
• Cerebral arteriosclerosis

Suspended Sentence

If you find yourself in the unfavourable position of not only having been found guilty of an offence, but also having been sentenced to a term of imprisonment, we may be able to obtain a suspended sentence on your behalf under section 96 of the Sentencing Act (2017). If you receive a suspended sentence, you will be required to enter into a good behaviour bond and to comply with any other conditions the Court sees fit to impose.

In previous cases, the solicitors at Caldicott Lawyers have negotiated with prosecutors to have the charge of causing death by dangerous driving reduced to lesser charges, which did not result in imprisonment or driver’s licence disqualification.

To successfully prosecute you for causing death by dangerous driving, prosecution must prove that:

1. You were driving a motor vehicle;
2. Your driving was negligent, reckless or at a dangerous speed; and
3. Your driving caused a person’s death or substantially contributed to that person’s death.

Causing death by dangerous driving is a major indictable charge. The proceedings will initially commence in the Magistrates Court of South Australia. If there is sufficient evidence against you, the matter will then be transferred to the District Court of South Australia.

Mercorella v Page (1975) 12 SASR 431: “Drive” is defined broadly to include any physical act which actually propels or causes the motor vehicle propelled or put into motion.

R v Cornish (1988) 48 SASR 520: Impairment of driving skills through intoxication is to be taken into account in the objective assessment of the defendant’s manner of driving, and there is no need for the defendant to realise that his or her alcohol consumption created a potential danger.

Come and see the professional team at Caldicott Lawyers for assistance with your driving matter.