**Road Safety Act 1986** ![[Section 64 Dangerous driving]] # Elements of the offence 1. The offence occurred at the *place* and *time* alleged. 2. That the offender *was the accused*. 3. The accused *drove a motor vehicle*. 4. At a *speed or in a manner that was dangerous to the public*. ## Dangerous Driving The definition of dangerous driving can be found at McBridge v The Queen (1966) 115 CLR 44: >This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby. These distinctions make it imperative that the jury be specifically directed as to the criteria to be applied and the distinctions to be observed in determining whether any particular speed or manner of driving can have the quality, intrinsic or occasional, of being dangerous to the public within the meaning of the section: and that the particular features of the driving charged as in breach of the section be isolated for the jury and related to these criteria. In short: it should involve a serious breach of the proper conduct of a vehicle to be within the realms of being potentially dangerous to others nearby or on the roadway. The risk must be *above* an ordinary level of risk associated by driving on a road or walking on a footpath adjacent to a road. The danger only needs to be a *potential danger* rather than a real one, as found at Kingman v Seager [1938] 1 K.B. 397. Negligence is not an element of dangerous driving. Failing to keep a proper lookout on a road with no other traffic or people in the vicinity is not dangerous driving as found at [_Pike v Becker_ (2012) 226 A Crim R 86;](https://anzlaw.thomsonreuters.com/Link/Document/FullText?refType=U2&serNum=2029079490&pubNum=0005341&originationContext=document&transitionType=DocumentItem&ppcid=ef73b8dc82a84255b1f0dae8902295f6&contextData=\(sc.Category\)&comp=wlau) ## Objective standard The assessment of the speed or manner of driving is *objective* (meaning at the courts perspective, not the person observing it) as found at King v The Queen [2012] HCA 24: >The offences of negligent culpable driving and dangerous driving are each subject to an objective test of liability. Neither requires proof that the accused possessed a subjective awareness of, and indifference to, the risk created by his or her driving. The mens rea for each is no more than the intention to do the acts involved in driving the motor vehicle. In neither case is it incumbent on the prosecution to prove a subjective “intention to drive badly.” The accused state of mind might still be relevant in providing evidence of the manner of driving, e.g. if the accused was so fatigued that he knew or ought to have known that when he chose to drive, he might fall asleep and lose control of his vehicle (see [_Jiminez v The Queen_ (1992) 173 CLR 572](https://anzlaw.thomsonreuters.com/Link/Document/FullText?refType=U2&serNum=1992357392&pubNum=0003586&originationContext=document&transitionType=DocumentItem&ppcid=ef73b8dc82a84255b1f0dae8902295f6&contextData=\(sc.Category\)&comp=wlau)). Taking into account specialist skills of a driver, such as a racing drive or an advanced police driver, is inconsistent with the objective standard, as found at R v Bannister (Craig) [2009] EWCA Crim 1571: >A special skill or lack of skill of a driver was an irrelevant circumstance when considering whether he had been driving dangerously and the decision in [Milton v Crown Prosecution Service [2007] EWHC 532 (Admin), [2008] 1 W.L.R. 2481, [2007] 3 WLUK 463](https://anzlaw.thomsonreuters.com/Link/Document/FullText?findType=Y&serNum=2011666083&pubNum=999&originatingDoc=I07B3F9D07CAF11DE8294A634C7EE655C&refType=UC&originationContext=document&transitionType=DocumentItem&ppcid=d8523649c41f43ed800cbb3ff5b70681&contextData=\(sc.DocLink\)), suggesting that such a circumstance could be taken into account, was overruled. A lack of ones driving skill is also not to be taken into account, as found at R v Jones (1986) 19 A Crim R 236: >The issue therefore in respect of the [s 59](https://anzlaw.thomsonreuters.com/Link/Document/FullText?refType=U7&docFamilyGuid=Icc4d07f4037811e99495db3043f758b0&pubNum=1100190&originationContext=document&transitionType=DocumentItem&docVersion=Law+in+Force&ppcid=6bad9bf91b93458a84def7bd7cb7338d&contextData=\(sc.DocLink\)) charge was whether, objectively considered, the driving of the appellant at the relevant time was dangerous to the public. That is not the same issue as was before the Court of Petty Sessions when it was called upon to consider the guilt or innocence of the appellant in respect of the [s 63](https://anzlaw.thomsonreuters.com/Link/Document/FullText?refType=U7&docFamilyGuid=Icdf75cbc037811e99495db3043f758b0&pubNum=1100190&originationContext=document&transitionType=DocumentItem&docVersion=Law+in+Force&ppcid=6bad9bf91b93458a84def7bd7cb7338d&contextData=\(sc.DocLink\)) charge for there it was necessary to establish that the appellant drove the vehicle while under the influence of alcohol or drugs or both to such an extent as to be incapable of having proper control. No exception is taken by the appellant's counsel to a description of the incident given by Crown counsel to the jury in opening the case. That description was along these lines. The night before the accident the appellant and Burgis went to a party at a house in Manjimup where they drank a large amount of alcohol. They left the party in Burgis' vehicle at about 4.00 in the morning planning to go on to another party. Burgis was then driving. Apparently he was in no condition to drive because after a while he stopped the vehicle on the side of the road and both men fell asleep. When daybreak **CRIM RAU 242 came the appellant was the first to wake up and while Burgis was still asleep in the vehicle he decided to drive the car back to Burgis' home. He was driving along Graphite Road, a bitumen road of the width of approximately eight metres, and more than sufficient to allow two cars to pass one another. There were gravel verges on either side of the road and bushes and trees adjacent to it. While the appellant was driving along a straight section of the road on a slight downgrade the car left the bitumen surface, travelled onto the gravel verge for a distance of 20 metres and smashed head on into a tree. The vehicle later was examined revealing no mechanical failure that might explain why it left the bitumen surface of the road and smashed into the tree. It was also very extensively damaged from which it might be inferred that it hit the tree with considerable force because it was being driven at a high speed. There were tyre marks apparently made by the vehicle but no marks on the road indicative of the application of brakes. In his record of interview the appellant stated he did not remember anything about the accident and he gave no evidence at the trial. This recitation of the facts suggests that in the absence of any exculpatory explanation the jury might well have reached the conclusion that objectively considered the appellant's driving was dangerous to the public. But there were no facts which suggested an exculpatory explanation.