Implications inherent in the test of momentary inattention and issues surrounding the determination of guilt
At the heart of the Australian criminal justice system lies the principle that a wrongful act alone will not establish criminal blameworthiness. The accused must also possess a guilty mind. This principle is expressed via the maxim actus non facit reum nisi mens sit rea1 (the act is not
culpable unless the mind is guilty).
The legal principles encapsulated within the offence of dangerous operation of a motor vehicle causing death or Grievous Bodily Harm (‘GBH’) (herein after referred to as dangerous driving) and its defences, causes concerns amongst the legal community. The issues surrounding the operation of dangerous driving legislation are complex. This area of the law has been settled by the High Court, however, there is minimal commentary to assist members of the legal community.
The inconsistencies contained within Australian dangerous driving legislation include inter alia, the definition of dangerous, the test of ‘momentary inattention’, relevant defences, the discretion of the Police, Prosecuting authorities and the Court.
In stark contrast to the Australian legal framework, the Canadian legal principles concerning dangerous operation of a motor vehicle outlines that the stigma of a conviction from a criminal offence should not be applied upon an accused arising from a momentary lapse of attention. A
conviction for dangerous driving in Canada requires there be a ‘marked departure’ from the normal manner of driving. This satisfies the element of actus reus. Mens rea can also be inferred when an accused’s manner of driving departs from the norm. This will not however, prevent or negate the casting of a reasonable doubt.
This ‘marked departure’ standard contrasts with the ‘mere departure standard’ where the conduct cannot meet the higher threshold and whereby a court cannot infer a blameworthy state of mind. This is why an accused in Canada whose conduct may satisfy the test of momentary
inattention (which would have otherwise met the standard in Australia), will not be convicted of the Canadian offence of dangerous operation of a motor vehicle. It is only where the conduct considered in isolation meets the standard of ‘marked departure’ (meaning something more than an everyday lapse of judgment), that criminal culpability will be attributed to an accused. This is discussed further below.
Driving carries inherent risks that are appreciated by most drivers. To depart from this, by criminalising even the smallest departure from this principle, broadens criminal culpability to include those who are not blameworthy. On this view, the principles of justice namely that one
must poses a guilty mind, are compromised, and may ultimately result in a morally innocent person being deprived of their liberty.
The distinction that must be drawn, is the extent of the departure from the norm. This could include inter alia, considerations such as excessive speeding, intoxication and participation in unlawful racing.
It would therefore, be upon the basis of conduct such as this, that the Court or a jury could attribute blameworthiness to an offender. Fault would thereby remain, an important feature of this consideration. The public interest consideration here would be that even the most competent driver may experience a lapse of attention.
An alternative approach could establish a presumption that a road incident caused by the negligence of a driver causing death or GBH would result in a conviction and could carry a term of imprisonment. This, in the authors view is erroneous as the onus should rest upon the Crown to prove otherwise, in accordance with conventional notions of justice.
Numerous accidents will incorporate some element of momentary inattention and if the conduct of the driver is identified as a stand-alone driving error, it becomes easier to find that the act was objectively dangerous. This is so especially in circumstances where that conduct
resulted in GBH or death.
Where a driver suffers a period of momentary inattention, effectively, there is insufficient grounds for criminal liability as the injuries resulting to the victim cannot (or should not) be attributed to the fault of that driver. This may, of course result in claim for damages, but should not (in most cases) demand criminal responsibility from that driver, unless it is appropriate in
Driving in itself is a dangerous activity. Many mistakes are made that could be considered as objectively dangerous. This however, does not result in an accident occurring. However, it is an ‘unjustified presumption’ to adopt the view that where a driver breaks a road rule and causes injury to another that they are guilty of a crime (other than the initial traffic infringement). If,
as a result of momentary inattention, an individual suffers harm, this is obviously an unfortunate result, but not enough in the author’s view to establish criminal doing.
This discussion will be divided into four parts. Part one of this discussion provides a background to the offence of dangerous driving, and outlines the state of affairs throughout Australia. This includes an outline of the elements of dangerous driving offences throughout Australia.
The next part evaluates the definition of dangerous and analyses the test of ‘momentary inattention’. This will focus upon guiding authorities, and the Court’s position on the same.
The third part of this discussion canvasses defences. Namely, the defence of mistake of fact, the defence of accident and its application in the Courts, and challenges inherent in relying on these defences. This is particularly so in circumstances where an individual has not driven dangerously, death or GBH was not foreseeable and there are no aggravating features present.
The final part provides an insight into the legislative framework abroad and examines which aspects of this area of the law require clarification to assist the Court and the legal community.
Part 1: The Australian Framework
The majority of Australian jurisdictions have an offence of dangerous driving causing death or serious injury, categorised as a lesser offence than those of negligently causing death or serious injury by driving. The test applied in all jurisdictions is that prescribed by the High Court of Australia in McBride v The Queen2 and Jiminez v The Queen, 3 which are discussed below.
For completeness, an outline of the relevant legislation concerning dangerous operation of a motor vehicle or its equivalent are also outlined below.
Australian Capital Territory
In the Australian Capital Territory, there is a summary offence of furious, reckless or dangerous driving in s 7 of the Road Transport (Safety and Traffic Management) Act 1999. Section 7(2)4 sets out the circumstances to which the Court must have regard in deciding whether an offence
has been committed. In addition, there is an offence of negligent driving occasioning death in s 6 of the Road Transport (Safety and Traffic Management) Act 1999; and an indictable offence of culpable driving causing death in s 29(2) of the Crimes Act 1990 (ACT).5 Section 7(1)6
provides for dangerous driving as driving ‘in a way that is dangerous to the public.’ This accords with Jiminez v The Queen.7
New South Wales
Dangerous driving occasioning death is found in s 52A (1) of the Crimes Act 1900. The maximum penalty is 10 years imprisonment. That section provides that a person is guilty of the respective offence if the driver was driving the vehicle ‘in a manner dangerous to a person or persons.’ The offences in s 52A8 are offences of strict liability. This section was examined in R v Saunders.9 In that case the New South Wales Court of Criminal Appeal applied the test set down in McBride v The Queen. 10 The New South Wales Courts have taken the view of the principles laid down by the High Court in McBride v The Queen11 and Jiminez v The Queen.12
The Northern Territory provision regarding dangerous driving causing death is created by s174F of the Criminal Code. 13 An individual will be guilty of the offence of dangerous driving causing death if that person ‘drives a motor vehicle dangerously’. Section 174F (4)14 outlines that the offence is one of strict liability. Section 174F15 has not yet received any consideration by the Northern Territory Court of Criminal Appeal.
Section 328A(4) of the Criminal Code16 relevantly provides that a person ‘who operates, or in anyway interferes with the operation of’ a vehicle dangerously causing grievous bodily harm or death is liable to imprisonment for 10 years. The penalty increases to 14 years if at the
relevant time the offender was intoxicated, speeding, or participating in an unlawful race. The Queensland Courts have adopted the principles laid down by the High Court in McBride v The Queen17 and Jiminez v The Queen.18
The offence of reckless and dangerous driving is found in s 46 of the Road Traffic Act 1961; and the offence of causing death or harm by dangerous use of vehicle or vessel is contained in s 19A of the Criminal Law Consolidated Act 1935. That section provides that a person who drives ‘negligently, recklessly, or in a manner dangerous to the public’ is guilty of an indictable
offence. In R v Jaeschke, 19 the South Australian Court of Criminal Appeal stated the practice in South Australia was for judges to direct juries in accordance with the principle laid down in McBride v The Queen20 and Jiminez v The Queen.21
The offence of causing death by dangerous driving is contained in s 167A of the Criminal Code Act 1924. In addition, s 32(2A) of the Traffic Act 1925 creates an offence of causing death by negligent driving. That section provides that a person who causes death as a result of the driving
of a vehicle in a manner dangerous to the public, is guilty of a crime. this depends upon the circumstances of the offence, including the nature and condition of the street, and the amount of traffic. The test set down by the High Court in McBride v The Queen22 and Jiminez v The Queen23 represents binding authority in Tasmania.24
In Western Australia, the offence of dangerous driving causing death is provided for in s 59(1) of the Road Traffic Act 1974. That section relevantly provides that a driver commits a crime if at the time of the incident the driver drove ‘in a manner that is, having regard to all the circumstances of the case, dangerous to the public or to any person.’
The Road Traffic Act25 also provides for the offence of dangerous driving causing bodily harm,26 dangerous driving27 and careless driving.28
The leading authority interpreting these provisions in McPherson v Lucas,
29 which specifically considered and offence of dangerous driving causing bodily harm.30 This judgment of the Western Australia Court of Appeal expressly relies upon both McBride v The Queen31 and Jiminez v The Queen.32
Section 318 of the Crimes Act 1958 (Vic) provides for the offence of Culpable driving causing death. A person will be guilty of driving a motor vehicle culpably if it is driven recklessly, negligently, or whilst under the influence of alcohol or drug. The relevant test will be satisfied if a driver consciously ignores a ‘substantial risk’ that the infliction of GBH or death of another
person may result from his driving. The test of negligence is the failure to observe ‘the standard of care which a reasonable man would have observed in all circumstances of the care.33 The Victorian Courts however, have taken the view of the High Court decision in Jiminez v The Queen.34
For the purposes of this discussion, the definition of ‘dangerous’ takes its meaning from the definition adopted in of King v R, 35 namely conduct that presents ‘a real risk of injury or damage’, or any act ‘involving risk’ which is ‘perilous, hazardous or unsafe’. With respect to driving, the Court in King v R outlined dangerous driving as driving in ‘a manner which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver’s own
Part Two: An Offence of Strict Liability: With Limited Exceptions
In the Australian Capital Territory, South Australia, Tasmania and Victoria, it is expressly stated that driving in a negligent manner may satisfy the elements of dangerous driving. Those jurisdictions however, have followed the decisions of McBride v The Queen36 and Jiminez v The Queen.37
Those cases explicitly provide:
…[I]t is not enough that the vehicle as driven by the accused has caused death or injury and the accused was negligent, even in some glaring respect. It is essential to define what is charged as the manner of driving, so that when that has been found, the two succeeding questions can be dealt with, namely, was that manner of driving in itself or in its circumstances dangerous to the public and, did the impact which caused the death or injury occur whilst the vehicle was being so driven. Of all of these matters the jury are to be satisfied beyond all reasonable doubt. 38
The notable case involving a failure to observe a risk was an application to the High Court seeking special leave in McBride v The Queen.39
McBride was a truck driver who was convicted under s 52A of the Crimes Act 1900 (NSW). He was driving his employer’s truck on a main road in a Sydney suburb. He was driving it at a relatively slow pace. He was following a vehicle, driving near to his left-hand side of the roadway. The vehicle stopped and McBride maintained that he then swerved to go around the
vehicle and stuck a woman and her infant son on a pedestrian crossing. The infant was killed and the woman sustained GBH. There was evidence that the brakes were defective. The Applicant argued however, that the pedestrians were not in his view as they had appeared from behind another vehicle entering the intersection where the incident occurred.40
Dangerous operation of a motor vehicle differs to the notion of negligence.41 The level of negligence of the individual charged with dangerous operation of a motor vehicle is not a consideration of the Court. The Court (or jury) need only find that the accused’s conduct was such that caused a danger to other road users. It is accepted that fault was not an element considered in the decision of R v Coventry (‘Coventry’).
42 In that instance, it was held that the purpose of the legislature is to ensure (in accordance with the principles of general deterrence)
the protection of road users against preventable and unreasonable dangers resulting from driving. This is because inattention of the driver is able to cause death in the same way as a positive act towards causing detriment to public safety.
Any purported level of negligence of an accused is irrelevant.43 If a driver acts in a manner that a jury considers to be dangerous in all the circumstances, then guilt can be determined irrespective of any finding of carelessness, recklessness or momentary inattention. This is so even where an inexperienced (or incompetent) driver was driving to the best of their ability.44 These characteristics of the charge of dangerous operation of a motor vehicle become relevant upon the determination of sentence.
R v Evans45 (‘Evans’) was applied in R v Ball and Loughlin46 where it was determined that the consideration of why a driver was in the dangerous situation, or whether the driving was indicative of dangerous driving (such as whether an accused failed to stop at a red light) in the circumstances was irrelevant. Ultimately, the elements of dangerous operation of a motor
vehicle may be satisfied even where mens rea has not been made out:
It is, in the opinion of this court, perfectly clear that what is meant by “driving in a manner dangerous” is the manner of the actual driving, which in this case was coming out of a minor road across a major road. It has been held time and again that an offence under this section is an absolute offence, not a question of the driver being vicariously liable for somebody else’s action, but it is a liability on the driver which he cannot get rid of, and if the result of his driving produced what the jury considered to be a dangerous situation, a dangerous manoeuvre, then even though he had been completely blameless, he can be held liable.
Barwick CJ expressed the view that the potential for danger to the public does not have to be a consideration of the accused at the time of the offence.47 It is relevant to note however, that although careless driving can be dangerous, it is not necessarily dangerous in every instance where driving is careless.48 The Courts in Australia have yet to draw this distinction.
The offence of dangerous driving was one of strict liability. This was confirmed in the English decision of Evans. The terms ‘careless’, ‘reckless’ and ‘momentarily inattentive’ are indicative of the fact that the offence (at that point in time) was a strict liability offence. The only departure from this rule was determined in the Australian decision of Coventry (as determined in Gosney), where it was held that the defence of mistake of fact may be open to a charge of dangerous operation of a motor vehicle (or its state-equivalent).49 This is discussed further below.
Momentary Inattention or Misjudgement
A momentary lapse of attention might be sufficient to satisfy the test required to find guilt. This is so, as long as there is some culpability on the part of the driver (although the threshold is not high). In other words, the level of culpability is irrelevant if, in all the circumstances, the driving
is deemed to be dangerous. Williams J noted that even casual driving behaviour which may result in some danger to the community, is not exempt from the definition of momentary inattention, merely because it is commonplace or casual.50
The Court has grappled with the notion of ‘momentary inattention’ from an early time. Chesterman J who heard the matter of R v Gosney51 (‘Gosney’) held in R v Bathe:52
Gosney was accepted uncritically as correctly stating the law by the Court of
Criminal Appeal in R v Hinz53 and in R v Webb. 54 In my respectful opinion
those cases should be disapproved, and Gosney should not be accepted as
stating the law in Queensland. The requirement of fault finds no support in
the judgments of McBride or Coventry. Those judgments are opposed to such a notion. Barack CJ emphasised that dangerous driving is in ‘sharp contrast to the concept of negligence’, which is what fault is, as described in Gosney.
In concert with this, McMurdo P in R v Wilson55 held:
Trial judges in Queensland have for many years directed juries in trials for
offences against s 328A criminal Code that fault is an element of that offence. By way of example, in the 1986 decision of R v Webb,
56 the Queensland Court of Criminal Appeal stated that there were two steps involved in determining whether a driver should be convicted of dangerous driving. The first was that the driving must be considered objectively to have been dangerous. The second was that there must have been some fault on the part of the driver which caused that danger to the public.57 The court cited as authority for the proposition that fault was an element of the offence the cases of R v Gosney,58 R Warner, 59 R v Hinz60 and Smith v R. 61… [i]n so far as Jiminez and Webb62 may be inconsistent, this Court is plainly bound by the High Court’s decision in Jiminez.
The Queensland bench book provides a useful outline to dangerous driving offences and the element of momentary inattention:
Momentary lapses of attention on the part of the driver, if they result in danger to the public, are not outside the ambit of the offence of dangerous operation of a motor vehicle merely because they are brief or momentary. If a driver adopts a manner of driving which is dangerous in all the circumstances of the case to other road users it does not matter whether they are deliberately reckless, careless, momentarily inattentive or even doing their incompetent best. However, the prosecution must prove that there was some serious breach of the proper conduct of the vehicle upon the roadway, so serious as to be in reality, and not speculatively, potentially dangerous to others.63
This was seen in R v Parker,64 where the Appellant was convicted after failing to stop at a red light and colliding with a bus at the intersection, causing the death of a nearby pedestrian. The Court in that instance held that a ‘momentary disregard’ of precautions may satisfy the requirements under the section. This is akin to the notion that if the manner of driving is
dangerous in all the circumstances, the level of culpability becomes irrelevant.
This situation is different from the instance where an individual fails to observe a genuine or possible risk. R v Wilson65 was a case where a motorcyclist attempted an overtaking manoeuvre on the Highway. The motorcyclist failed to see an oncoming motorcycle and collided with it.
Failing to identify the oncoming road user which although caused the accident, would generally be considered careless or negligent, however, would not be, in the general sense of the term, and in the courts view in that decision, be considered a positive act that was dangerous. This
therefore, did not satisfy the test of momentary intention.
The Honourable Barwick CJ held that the reasons offered by the evidence were that the truck was operated dangerously to the extent that it could only be recognised as inattentiveness, and that inattentiveness constituted ‘a danger to the public’. Interestingly, Barwick CJ identified that inattentiveness could be established merely upon the circumstances of impact and the account of the accused.66 His Honour also stated that being dangerous to the public could be inferred by the manner of driving. Although the result of the conduct does not impact whether the driving was dangerous, there must be some kind of impact, and damage must occur. His
Honour further stated, “[w]hilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality.”67 It is effectively however, when the jury’s mind is set upon whether the driving was dangerous in all the circumstances, which must be considered.
Part Three: Defences
Defence of Mistake of fact and onus of proof
The defence of mistake of fact avails an accused with an excuse from criminal responsibility, if that person does or fails to do a certain act under the honest and reasonable (but mistaken) belief ‘in the existence of any state of things, to the same extent as if the real state of things
had been such as the person believed to exist’.68 The act or omission to which the defence refers is the act of which an accused is charged.69 This defence is often identified as the defence of common-sense.70
In He Kaw Teh v The Queen71 the High Court determined that where a statutory offence imposes absolute liability (by excluding the requirement of mens rea), the defence of honest and reasonable mistake will not be available to an accused. This was based upon the notion that if honest and reasonable mistake were not excluded, it would provide an excuse for ‘what would otherwise be an offence’.72 This was until the Court in Coventry recognised that the defence of honest and reasonable mistake was available to a dangerous driving charge. The High Court in Jiminez v The Queen, 73 referred to the judgment in Coventry, where the majority stated at 36:
No doubt the language of the section does not exclude a defence of mistake
of fact on reasonable grounds or of involuntariness (for example, interference by another person with the driving of the car), and perhaps there may be other exceptional excuses, based on special facts, to which a state of mind may not be immaterial. But, speaking generally, the expression ‘driving at a speed, or in a manner, which is dangerous to the public’ describes the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence.
The High Court in Jiminez v The Queen, 74 referred to the English authority of Gosney, 75 and took the following view with regard to whether an accused is able to raise the defence, and establish an honest and reasonable mistake:
To our eyes what the appellant was attempting to do in Gosney was to
establish an honest and reasonable mistake, a defence which, in this country, makes it unnecessary to introduce fault as an element of that offence. Driving in a manner dangerous to the public is at once both the offence and, if it is relevant, the fault, but it 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 it upon reasonable grounds to be in good working order. And the same issue is raised when, in a case like the present where the dangerous manner of the driving is said to consist in the likelihood of going to sleep, a driver claims that he had no warning of the onset of sleep.76
The doctrine of mens rea was effectively replaced with this defence.77 In Anderson v Nystrom, 78 Douglas J held that a honest and reasonable, but mistaken belief in a certain set of facts, may “excuse or render innocent acts which would otherwise be criminal”.79 This proposition, namely that a person who does or omits to do an act under a ‘reasonable is apprehension of fact’80 will not bear criminal responsibility even if those facts did not exist, has been codified in various States.
In the case of Coventry the High Court held that the test was objective and that the state of mind of the accused was irrelevant. The majority stated that the defence of mistake of fact would apply in circumstances where there were ‘reasonable grounds’ to do so or where there was an involuntary act of the driver (the High Court provided the example of interference with the driving of the car by another person). The High Court further stated that there may be other facts arising to an ‘exceptional excuse’ whereby the drivers state of mind would not be immaterial. The Court stated however, that dangerous operation of a motor vehicle ultimately refers to the ‘actual behaviour’ of a driver. Consideration of the state of the mind of the driver at the the of the offence is therefore not required.81
The prosecution bears the onus of negating beyond a reasonable doubt once the defendant has discharged the evidential onus. The defendant must show that the mistake of fact is fit to the extent that it may be considered by the tribunal of fact. The defendant is entitled to any doubt that defence may raise as a result.82
available as Evans established negligence is not a consideration in the determination of guilt. The test of momentary inattention suggests a lower threshold to a finding of guilt than the reasonable person test, which carries a higher standard. The defence of accident ultimately does not apply, because there is an objective determination of whether the driving is dangerous. Once this determination has been made, then the cause of
the dangerous driving is thereby irrelevant.
Part 4: A Different Perspective
The offence of Dangerous operation of motor vehicles, vessels and aircraft under Canadian legislation is outlined under s 249 of the Canadian Criminal Code, R.S.C. 1985, c. C-46. 83 The Canadian perspective considers dangerous operation to be a negligence-based offence, as opposed to merely being an offence based on driving which causes danger to the public.
The leading case outlining the ambit of Canadian legislation is the case of R v Beatty .84 In that instance the defendant was charged with dangerous operation of a motor vehicle causing death under that section. The incident resulting in the charges took place when the defendant’s truck suddenly crossed a solid line and collided with an oncoming vehicle killing all occupants.85 Witnesses observed the vehicle being operated in an ordinary manner prior to the incident. 86 The car had not suffered any mechanical failure. The driver was not intoxicated. The defendant could not recall what occurred, but stated he may have fallen asleep, causing the accident. The issue to be resolved was whether this act constituted dangerous operation of motor vehicle causing death.
The Court determined in that instance that the momentary negligence could not support a finding that the driver had departed from the conduct of a ‘reasonably prudent driver’. In these circumstances the defendant’s failure to stay in his own lane was dangerous and therefore the actus reus of the offence was made out. It was not possible however, to establish mens rea.
This is because there was no evidence to establish deliberate intention. The evidence suggested that the dangerous conduct subject to the charge resulted merely from the defendant’s momentary inattention. There was no evidence that the driver had improperly operated the vehicle. Viewed objectively, this was insufficient to support a finding that the driver departed from the requisite standard of care ‘of a prudent driver’.
It is author’s view (which accords with the Canadian perspective), momentary inattention (without more) may be insufficient to establish actus reus and mens rea. If, however, additional evidence can be adduced to illustrate that the individual’s conduct forms a larger pattern
whereby it can be shown that (for all intents and purposes) the driver was operating the vehicle dangerously then mens rea may be inferred from the pattern of driving (bar lawful defences such as accident and mistake of fact).
Current conceptions of criminal law acknowledge that the justice system can cause harm, specifically in instances where advocates argue for a shift in the status quo pertaining to fault in our criminal law system. The greatest difficulty lies in the fact that moral culpability traditionally requires some sort of ‘ill-intention’. Intention is the cornerstone of crime and defines the boundaries of criminal liability. Not only does intention serve as an element of many offences, it is often the element that dictates application of criminal law.
Although this area of the law has been settled by the High Court, the tests applicable in the determination of guilt are unique to the criminal justice system. The test of ‘momentary inattention’ is a broad concept, which ultimately affects all road users, and by extension of that category, the Australian community.
This is an important issue for practitioners and drivers, as dangerous operation of a motor vehicle is an ‘easy’ crime to commit. Police exercising their discretion in determining whether an individual should be charged with dangerous driving or merely negligent driving exacerbates the issues surrounding this area of the law significantly. This is because an individual can be charged with this offence if they were not intoxicated, not speeding, or not driving in the manner in which the community typically identifies as being dangerous.
The tests encompassing this offence are typically circular, and there are limited defences available to an accused. There is no reasonableness test, which means that what an ordinary person would have done in the circumstances is not an idea explored by the Court in hearing
dangerous driving cases.
The Canadian perspective could operate as a guide for Australian Courts, to alleviate the perceived difficulties inherent in sentencing under the Australian framework. This would involve a shift from the idea that moral culpability is not a consideration of the Court in the determination of guilt. This would however, demand a significant departure from the Australian position. This also accords with the current (although not persuasive) guidelines as developed by Prosecuting authorities throughout Australia. Whether this is envisioned in the future of the Australian framework remains unseen.