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Chapter 45: Reckless or Dangerous Driving

Table Of Contents  

[45.0] Introduction 

This chapter will examine the offences of: 

[i] 'Causing Death By Reckless Or Dangerous Driving', as provided for by section 38 of the Traffic Act (Ch. 131); and 

[ii] 'Reckless Or Dangerous Driving', as provided for by section 39(1) of the Traffic Act (Ch. 131). 

For the purpose of consistency the offences under the Traffic Act (Ch. 133) should be interpreted  

'in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith', see section 3 of the Penal Code (Ch. 26). 

See: Road Traffic Act 1960 (UK).

[45.1] Causing Death By Reckless Or Dangerous Driving

[45.1.1] Offence 

Section 38 of the Traffic Act (Ch. 131) states: 

'A person who causes the death of another person by the driving of a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road, shall be guilty of an offence and liable to imprisonment for five years.' 

See: Road Traffic Act 1960 (UK), section 1.

[45.1.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did cause the death of another person namely [specify the name of the victim] by the driving of a motor vehicle to wit a [specify the motor vehicle] on a road namely [specify the name of the road] [recklessly or (at a speed and / or in a manner) which was dangerous to the public] having regard to all the circumstances of the case including the nature, condition and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the said road by [specify the driving of the defendant].' 

It is permissible to charge a defendant with 'driving at a speed and in a manner dangerous to the public', see R v Clow (1963) 47 CrAppR 136. 

See also: R v Wilmot (1933) 24 CrAppR 63 & Ben Donga v R (Unrep. Criminal Appeal Case No. 16 of 1994; Palmer J).

[45.1.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Cause The Death Of Victim 

E. Driving 

F. Motor Vehicle 

G. Road 

H.        [1] Recklessly; or 

[2]        [i] At A Speed; or 

[ii] In A Manner

Dangerous To The Public 

I. Having Regard To All The Circumstances Of The Case Including The Nature, Condition And Use Of The Road, And The Amount Of Traffic Which Is Actually At The Time, Or Which Might Reasonably Be Expected To Be, On The Road

[45.1.4] Related Offence 

Section 165 of the Criminal Procedure Code (Ch. 7) states: 

'When a person is charged with manslaughter in connection with the driving of a motor vehicle by him and the court is of the opinion that he is not guilty of that offence, but that he is guilty of an offence under section 39 or section 40 of the Traffic Act he may be convicted of that offence although he was not charged with it.' 

As regards the offence of 'Manslaughter', Lord Roskill in Government of the United States of America v Jennings & another (1982) 75 CrAppR 367; [1982] 3 WLR 450 stated at pages 377 & 406 respectively: 

'[… P]rosecuting authorities today would only prosecute for manslaughter in the case of death caused by the reckless driving of a motor vehicle on a road in a very grave case.' 

See also: R v Seymour (1983) 77 CrAppR 215 at page 219.

[45.1.5] Jurisdiction 

The jurisdiction of the Courts in respect of the offence of 'Causing Death By Reckless Or Dangerous Driving' is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of those offences is examined commencing on page 918, including the 'Disqualification Of Drivers' Licenses'.

[45.2] Reckless Or Dangerous Driving

[45.2.1] Offence 

Section 39(1) of the Traffic Act (Ch. 131) states: 

'If a person drives a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road, he shall be guilty of an offence and liable to: 

(a) on conviction by the High Court, to a fine of one thousand dollars or to imprisonment for two years or to both such fine and such imprisonment; 

(b) on conviction by a Magistrates' Court, to a fine of five hundred dollars or to imprisonment for six months or to both such fine and such imprisonment, or in the case of a second or subsequent conviction to a fine of six hundred dollars or to imprisonment for twelve months or to both such fine and such imprisonment.'

[45.2.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did drive a motor vehicle to wit a [specify the motor vehicle] on a road namely [specify the name of the road] [recklessly or (at a speed or in a manner) which was dangerous to the public] having regard to all the circumstances of the case including the nature, condition and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the said road by [specify the driving of the defendant].'

[45.2.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Drive 

E. Motor Vehicle 

F. Road 

G.        [1] Recklessly; or 

[2]        [i] At A Speed; or 

[ii] In A Manner

 Dangerous To The Public 

H. Having Regard To All The Circumstances Of The Case Including The Nature, Condition And Use Of The Road, And The Amount Of Traffic Which Is Actually At The Time, Or Which Might Reasonably Be Expected To Be, On The Road 

It is permissible to charge a defendant with 'driving at a speed and in a manner dangerous to the public', see R v Clow (1963) 47 CrAppR 136. 

See also: R v Wilmot (1933) 24 CrAppR 63 & Ben Donga v R (Unrep. Criminal Appeal Case No. 16 of 1994; Palmer J).

[45.2.4] Jurisdiction 

The jurisdiction of the Courts in respect of the offence of 'Reckless Or Dangerous Driving' is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of those offences is examined commencing on page 918, including the 'Disqualification Of Drivers' Licenses'.

[45.2.5] Related Offences 

The following offences are related to the offence of 'Reckless Or Dangerous Driving': 

·                     'Careless Or Inconsiderate Driving', section 40 of the Traffic Act (Ch. 133). That offence is examined commencing on page 726; and 

·                     'Reckless Or Dangerous Cycling', section 49 of the Traffic Act (Ch. 133).

[45.3] Drive 

The term 'Drive' is defined in section 2 of the Traffic Act (Ch. 131) in relation to a motor vehicle as including: 

'the steering of a motor vehicle'. 

In R v McDonagh [1974] QB 448; [1974] 2 AllER 257 [(1974) 59 CrAppR 55; [1974] 2 WLR 529; [1974] RTR 372; [1974] CrimLR 317] Lord Widgery stated at pages 451 and 258 respectively: 

'[I]n its simplest meaning we think that [… the word 'drive'] refers to a person using the driver's controls for the purpose of directing the movement of the vehicle. It matters not that the vehicle is not moving under its own power, or is being driven by the force of gravity, or even that it is being pushed by other well – wishers. The essence of driving is the use of the driver's controls in order to direct the movement, however movement is produced.' (emphasis added) [words in brackets added] 

In Hill v Baxter (1957) 42 CrAppR 51 Person J commented at page 60: 

'In any ordinary case, when once it has been proved that the accused was in the driving seat of a moving car, there is prima facie an obvious and irresistible inference that he was driving it.' (emphasis added) 

As to the proof of the identity of the driver when two persons are seen to run from the motor vehicle, see Smith v Mellors & Soar (1987) 84 CrAppR 279. 

See also: R v Price (1968) 52 CrAppR 25; Campbell v Tormey (1969) 53 CrAppR 99; Pinner v Everett [1969] 1 WLR 1266; R v Jones (1970) 54 CrAppR 148 at page 152; McKeon v Ellis [1987] RTR 26; Allan v Quinlan, Ex parte Allan [1987] 1 QdR 213; Blayney v Knight (1975) 60 CrAppR 269; Cooley v Lowe (1984) 1 MVR 455; Williams v Urie (1984) 1 MVR 311; Tink v Francis [1983] 2 VR 17; Bassell v McGuiness (1981) 29 SASR 508; Hampton v Martin [1981] 2 NSWLR 782 at page 796; Hart v Rankin [1979] WAR 144; McNaughton v Garland [1979] QdR 240 at page 244; McGrath v Cooper [1976] VR 518; R v Clayton [1973] 2 NZLR 211 & Caughey v Spacek [1968] VR 535.

[45.4] Motor Vehicle 

The term 'Motor Vehicle' is defined in section 2 of the Traffic Act (Ch. 131) as meaning: 

'any mechanically propelled vehicle, excluding any vehicle running on a specially prepared way such as a railway or tramway or any vehicle deriving its power from overhead electric power cables or such other vehicles as may from time to time by regulations under this Act be declared not to be motor vehicles for the purpose of this Act.' (emphasis added) 

A vehicle is not a 'mechanically propelled vehicle' unless the motor vehicle in question has reached the stage where there is no reasonable prospect of it ever being made mobile again as a mechanically propelled vehicle, then it will remain a mechanically propelled vehicle for its life, see Binks v Department of the Environment [1975] RTR 318; Mc Eachran v Hurst [1978] RTR 462; [1978] CrimLR 499 & Reader v Bunyard (1987) 85 CrAppR 185; [1987] RTR 406; [1987] CrimLR 274.

[45.5] Road 

The term 'Road' is defined in section 2 of the Traffic Act (Ch. 131) as meaning: 

'any public road within the meaning of the Roads Act or any Act replacing that Act and includes any other road or way, wharf or car park on which vehicles are capable of travelling and to which the public has access, and includes a bridge over which a road passes.' (emphasis added) 

The term 'Road' is not defined in the Roads Act (Ch. 129). 

See: Ling Ainui v Luke Ouki [1977] PNGLR 11 at page 12; Clarke v Kato & others [1997] 1 WLR 208; Hansen v Appo; Ex parte Appo [1974] QdR 259 & O'Mara v Lowe; Ex parte O'Mara [1971] QWN 34.

[45.6] Recklessly 

In R v Lawrence (1981) 73 CrAppR 1; [1982] AC 510 [[1981] 1 AllER 974; [1981] 2 WLR 524; [1981] RTR 217; [1981] CrimLR 409] Lord Diplock, with whom Lords Fraser, Roskill & Bridge concurred, held at pages 11 & 526 respectively: 

'In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things: First, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and secondly, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved had nonetheless gone on to take it. It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves. ['Objective Test'] If satisfied that an obvious and serious risk was created by the manner of the defendant's driving, the jury are entitled to infer that he was in one or other of the states of mind required to constitute the offence and will probably do so; but regard must be given to any explanation he gives as to his state of mind which may displace the inference.' (emphasis added) [words in brackets added] 

In R v Boswell, Elliott, Daley & Rafferty (1984) 79 CrAppR 277 [[1984] 3 AllER 353; [1984] 1 WLR 1047; [1984] RTR 315; [1984] CrimLR 502] Lord Lane CJ, delivering the judgment of the Court, after referring to the abovementioned statement, stated at page 281: 

'To be guilty the defendant must have created an obvious and serious risk of injury to person or damage to property and must either have given no thought to the possibility of that obvious risk, or have seen the risk and nevertheless decided to run it, although he had seen it.' 

In R v Clarke (1990) 91 CrAppR 69 Russell LJ, delivering the judgment of the Court, stated at page 73: 

'Our understanding of the Lawrence direction is as follows. The jury first have to make their findings as to what happened. Once they have done that they ask themselves whether those findings disclose that the vehicle, with the defendant at the wheel, created, adopting reasonable standards, an obvious and serious risk of injury to some other person who might happen to be using the road or of doing substantial damage to property. That is the first limb of the Lawrence direction and we are satisfied, contrary to the submissions of Mr. Elias, that it does not involve any consideration of the reason why the defendant was driving so as to create such a risk (save perhaps in those cases where the defendant is not "driving" at all by reason of some physical incapacity, not self – induced, but rendering him incapable of physical control of the vehicle). 

[…] 

If, but only if, the jury answer the first limb in the affirmative, they must then go on to consider the second limb, and it is here in our judgment that the jury may, if they think fit, take into account the effect of drink upon the driver provided always that they are sure that the effect was a real one. The consumption of drink may have so disinhibited the driver that he does not give any thought to the possibility of there being any risk, or he may have taken the risk when he would not have done so had he not been affected by alcohol. 

We do not accept that unless and until the consumption of alcohol plays a part in the driving, to the knowledge of the defendant, the jury should eliminate it from their deliberations.' 

In R v Griffiths (1988) 89 CrAppR 6 Parker LJ, delivering the judgment of the Court, stated at pages 9 – 10: 

'The result of R v Lawrence (supra) and the earlier cases is as follows: (1) If the first limb of the test is satisfied and there is nothing more the jury may convict; (2) if the prosecution wish to strengthen the inference which may be drawn from the fact that the first limb is satisfied, or to displace any explanation advanced by the driver, they can do so by any evidence which is admissible; and (3) evidence of alcoholic consumption sufficient to impair control is admissible for this purpose.' 

In R v Crossman (1986) 82 CrAppR 333 Lord Lane CJ, delivering the judgment of the Court, held at page 336: 

'The jury could, and no doubt would, have found that the appellant foresaw the high degree of risk that the load would fall off and if it did might injure someone, but nevertheless decided to run that risk. He caused that risk, or put it into operation by driving the vehicle on to the road. He was driving with the knowledge that by doing so, however slowly, however gingerly, however carefully he drove, he was putting other road users at risk of serious injury or death. This seems to us to fall quite clearly as a matter of simple wording under the expression "reckless driving", driving with the knowledge that by moving the vehicle along the road at all, he was running the serious risk of injuring someone. That, in our view, was reckless driving […].'

 See also: R v Woodward [1995] 2 CrAppR 388 at page 393; R v Reid (1990) 91 CrAppR 263; R v Seymour [1983] 3 WLR 349; [1983] 2 AllER 1058; [1983] 2 AC 493; [1983] RTR 455; [1983] CrimLR 742; (1983) 77 CrAppR 215; R v Lamb (1990) 91 CrAppR 181 & R v Madigan (1982) 75 CrAppR 145.

[45.7] Dangerously 

In R v Gosney (1971) 55 CrAppR 502; [1971] 2 QB 674 [[1971] 3 AllER 220], Megaw LJ, delivering the judgement of the Court of Criminal Appeal, stated at pages 508 & 680 respectively: 

'In order to justify a conviction there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation. 'Fault' certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame. Thus there is fault if an inexperienced or a naturally poor driver, while straining every nerve to do the right thing, falls below the standard of a competent and careful driver. 

Fault involves a failure, a falling below the care or skill of a competent experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case. A fault in that sense, even though it be slight, even though it be a momentary lapse, even though normally no danger would have arisen from it, is sufficient. The fault need not be the sole cause of the dangerous driving. It is enough if it is, looked at sensibly, a cause. Such a fault will often be sufficiently proved as an inference from the very facts of the situation. But if the driver seeks to avoid that inference by proving some special fact, relevant to the question of fault in this sense, he may not be precluded from seeking so to do' (emphasis added) 

A momentary disregard of safety precautions or a momentary act of negligence can amount to dangerous driving, see R v Parker (1957) 41 CrAppR 134 at page 135. 

In R v Ball & Loughlin (1966) 50 CrAppR 266 Lord Parker LJ, delivering the judgment of the Court, stated at page 270: 

'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 […]. […] The case of EVANS [(1962) 47 CrAppR 62; [1963] 1 QB 42] now set out quite clearly that the test is a purely objective one and that it matters not why the dangerous situation was caused or the dangerous manoeuvre executed.' 

See also: R v Coventry (1938) 59 CLR 633; [(1938) 12 ALJ 67] at pages 637 – 639; Karo Gamoga v The State [1981] PNGLR 443 at pages 451 – 452 & R v Webb [1986] 2 QdR 446. 

The defendant must have regard not only to actual, but also to potential danger, crossroads, bends, etc, see Durnell v Scott [1939] 1 AllER 183. 

The following are the important considerations in determining whether a defendant was driving 'dangerously': 

·                     The 'test' to be applied is 'objective', and not 'subjective'; 

·                     Therefore, the opinion of the defendant whether he/she was driving dangerously is immaterial; 

·                     The 'test' to be applied is whether an ordinary or reasonable person would have thought that the defendant was driving dangerously having regard to all the circumstances of the case including the nature, condition and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road in question; 

·                     Driving dangerously may involve causal behaviour and / or momentary lapses of attention; 

·                     The danger caused by the driving to the public may be either real or potential; 

·                     To drive dangerously must involve some 'fault' on the part of the defendant which caused the dangerous situation; 

·                     That 'fault' of the defendant does not need to involve either: [i] deliberate conduct or [ii] intentionally driving dangerously; and 

·                     'Fault' involves a failure, a falling below the care or skill of a competent experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case.

[45.8] Evidence Of Speed 

Excessive speed alone may constitute dangerous driving, see Bracegirdle v Oxley [1947] KN 349; [1947] 1 AllER 126. 

To prove that a defendant drove at a speed dangerous to the public it is necessary for the prosecution to present evidence of a certain speed or range of speeds, either by: 

·                     an observation of the speedometer of the police motor vehicle; 

·                     by an estimation of the speed of the defendant's motor vehicle, see however, section 41(2) of the Traffic Act (Ch. 133); or 

·                     an admission by the defendant. 

As regards the accuracy of speedometers in motor vehicles, it has been held that such technical, if not scientific, instruments are presumed to function accurately, unless the contrary is shown, see Thompson v Kovacs [1959] ALR 636 & Peterson v Holmes [1927] SALR 419. 

If it is intended to rely on an estimation of a police officer, the prosecution must lay the basis for such evidence. Refer also to the law relating to 'Opinion Evidence – Lay Persons' which is examined commencing on page 205. 

Factors which may assist include: 

·                     the types of motor vehicles able to be driven; 

·                     the length of time being the holder of a driver's license; and 

·                     policing experience in the detection of speeding offences. 

See also: Zanker v Modystach (1990) 54 SASR 183; Wells v Gill [1960] SASR 106; Hogan v Walsh [1936] SASR 273; Buckley v Bowes [1925] VLR 350 & Kelly v Walsh [1929] SASR 481.

[45.9] Evidence Of Manner Of Driving 

In R v Ball & Loughlin (1966) 50 CrAppR 266 Lord Parker LJ, delivering the judgment of the Court, stated at page 270: 

'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 […]. […] The case of EVANS [(1962) 47 CrAppR 62; [1963] 1 QB 42] now set out quite clearly that the test is a purely objective one and that it matters not why the dangerous situation was caused or the dangerous manoeuvre executed.' 

Minor traffic infringements do not amount to 'dangerous driving', unless there is a danger caused to the public, see R v Jones [1978] 3 AllER 1098 [(1978) 67 CrAppR 166] at page 1102. 

In R v Robert Millar (Contractors) Ltd & Robert Millar (1970) 54 CrAppR 158 Fenton Atkinson LJ, delivering the judgment of the Court, stated at page 165: 

'In our view, if a driver is sent out by his employer to drive a heavy vehicle, on a trip extending over some hundreds of miles carrying heavy loads with a dangerously defective front off – side tyre, by an employer who knows that the tyre is dangerous, and there is a serious risk of harm resulting to other road – users, then, if that tyre does burst and thereby causes an accident killing somebody, the employer is guilty of counselling and procuring death by dangerous driving. It is no answer to that to say that the driver of the vehicle at the time was said to be doing his best and was steering the vehicle properly, controlling it as well as he could and so on, and that there would have been no accident but for the bursting of the tyre. 

In our view, a man is driving in a manner dangerous to the public if he drives at some speed on the road a vehicle with a tyre which he knows is dangerous and defective and liable to burst at any moment.' (emphasis added) 

To prove that a defendant drove in a manner dangerous to the public, the prosecution must present evidence which outlines the manner in which the defendant drove the motor vehicle, including: 

·                     any distance driven on the wrong side of the road; 

·                     whether any pedestrians were forced to take evasive action to avoid the defendant's motor vehicle; 

·                     the speed of the defendant's motor vehicle; 

·                     whether any other vehicles were overtaken in dangerous situations such as on a blind corner; 

·                     any failure to use indicators; 

·                     any failure to use headlamps;

·                     any disobedience of traffic signs; 

·                     any failure to give 'right of way'; 

·                     any intentional collisions with other vehicles or objects; 

·                     any other offence committed under the Traffic Regulations (Ch. 131), including defects to the motor vehicle; 

·                     any failure to keep a proper look – out; and 

·                     any potential danger to the public.

Where actual danger to the public has been caused the investigating police officer should: 

·                     record the details as soon as possible after the incident; and 

·                     attempt to locate all witnesses and obtain a statement from those persons. 

As regards the 'circumstances of the case', evidence should be given regarding: 

·                     the description of the class of road, eg. main street, suburban street, etc.; 

·                     the type of road surface; 

·                     the condition of the road surface; 

·                     whether there were any bisecting roads; 

·                     whether there were any official traffic signs or marking on the road; 

·                     whether there was any street lighting along the route, if applicable; 

·                     the characteristics of the road as to whether it was straight, level, curved, etc.; 

·                     visibility limitations as regards for example, dust, smoke, fog, etc.; 

·                     the weather conditions; 

·                     the speed limit on the road; 

·                     the amount of traffic actually on the road; and 

·                     the amount of traffic reasonably expected to be on the road at the time in question. 

A court may however take 'judicial notice' of a number of those issues. The law relating to 'Judicial Notice' is examined commencing on page 333. 

A court may consider that it would be beneficial to have a 'view' of the road in question. In The State v Kevin Daniel Marcellin (Unrep. N283; 12 December 1980; Papua New Guinea) Narokobi AJ, sitting alone, stated: 

'[H]aving decided that the view is to be limited to seeing the physical condition of the road and the possible location and position of the vehicle at different times, and in the presence of counsel, I see no objection to taking a view of the scene. Furthermore, defence counsel is at liberty to ask any questions on cross – examination relating to the view.' 

The law relating to 'View Of Crime Scenes' is examined commencing on page 335. 

A sketch plan can be an important 'documentary aid' in assisting the court in determining the guilt of a defendant. However, if it intended to outline the direction travelled by the defendant then the plan should be completed by a witness who made the observation of the driving of the defendant. Otherwise, the plan would be based to some extent on 'hearsay evidence', see Frank Norman Hiki v R (Unrep. Criminal Appeal Case No. 9 of 1979; Davis CJ; at page 2). 

The law relating to: 

·                     'Documentary Aids' is examined commencing on page 239; and 

·                     'Hearsay Evidence' is examined commencing on page 176.

[45.10] Evidence Of Alcohol 

A defendant should be questioned regarding his/her consumption of alcohol in terms of: 

·                     the type of alcohol consumed; 

·                     the volume of alcohol consumed; 

·                     the time of the first drink of alcohol; and 

·                     the time of the last drink of alcohol, prior to driving the motor vehicle in question. 

In R v Woodward [1995] 2 CrAppR 388 Lord Taylor CJ, delivering the judgment of the Court of Appeal, stated at pages 392 – 394: 

'The relevance to the offence of evidence that the defendant had taken drink was explained in McBride (1961) 45 CrAppR 262, [1962] 2 QB 167. Ashworth J, giving the reserved judgment of the court of five judges said at p. 266 and p. 172 respectively: 

"… if a driver is adversely affected by drink, this fact is a circumstances relevant to the issue whether he was driving dangerously. Evidence to this effect is of probative value and is admissible in law. In the application of this principle two further points should be noticed. In the first place, the mere fact that the driver had had drink is not of itself relevant: in order to render evidence as to the drink taken by the driver admissible, such evidence must tend to show the amount of drink taken was such as would adversely affect a driver or, alternatively, that the driver was in fact adversely affected. Second, there remains in court an overriding discretion to exclude such evidence if, in the opinion of the Court, its prejudicial effect outweighs its probative value." 

That principle was applied in Thorpe (1972) 56 CrAppR 293, [1972] 1 WLR 342. At p. 206 and pp. 344, 345, respectively, Lord Widgery, CJ., after quoting the passage cited above, said: 

"The principle which is enshrined in that paragraph is quite clearly this. It would be prejudicial and not probative for the prosecution to seek to show merely that the accused had been in a public house on the evening in question or had been seen with a glass of beer in his hand. If evidence of that kind were allowed to be admitted, it might prejudice the mind of the jury and it would have no probative value at all. What this Court was saying in Mc Bride (supra) was that such evidence is not admissible unless it goes far enough to show that the quantity of alcohol taken is such that it may have some effect on the way in which the man drives. […]" 

Thus, […], there was no doubt that evidence of a substantial quantity of drink taken was admissible on the issue of whether the defendant was driving dangerously. Mc Bride and Thorpe have not been overruled. 

However, section 50(1) of the Criminal Law Act 1977 substituted a new section 1 in the Road Traffic Act 1972. Causing death by dangerous driving was abolished and the new section 1 contained only the offence of causing death by reckless driving. The recklessness necessary to prove that offence was defined in R v Lawrence (1981) 73 CrAppR 1, [1982] AC 510. 

Lord Diplock at p. 11 and p. 526 respectively articulated the well – known two – limbed test. […] 

[That test is outlined commencing on page 710.]

In a series of decisions of this Court, evidence that the defendant had been drinking was held to be admissible only in relation to the second limb of Lord Diplock's test, not in relation to the first. [… I]n Welburn [(1992) 94 CrAppR 297; [1992] RTR 391], Lord Lane, CJ expressed something less than wholehearted agreement with the authorities he felt bound to follow. He said at p. 300 and p. 394L to 395B respectively: 

"The problem in this case can be stated quite simply and that is this: is the question of drink admissible so far as the first part of Lord Diplock's direction is concerned, or, should it be confined only to the second part of Lord Diplock's analysis? There is a great deal to be said for either point of view. We are told that there is certainly a large body of academic opinion which would favour the applicability of the drink question to part one of the Diplock direction. That may very well be correct academically. But we are concerned with the law as it stands at the moment, and it seems to us that, whatever arguments there may be in the contrary direction, we are bound by a number of decisions which tend to lay down, and in fact do lay down that the problem of drink is not to be regarded under part one of the Diplock direction, but only under part two." 

In Peters [[1993] RTR 133] this Court held that although evidence of driving with too much drink does not "of itself" constitute the actus reus of causing death by reckless driving, it may be relevant and therefore admissible to help determine what was the manner of driving where the facts are in issue.' (emphasis added) [words in brackets added]

See also: Karo Gamoga v The State [1981] PNGLR 443 at pages 451. 

To prove that the consumption of alcohol did adversely affect a defendant requires evidence from a doctor who can give 'opinion evidence' based on the defendant's admitted consumption of alcohol prior to the time of the alleged offence. Refer also the subsection which examines 'Opinion Evidence – Experts' commencing on page 202. 

In R v Newell (1948) 32 CrAppR 173 Humphreys J, delivering the judgment of the Court, stated at page 180: 

'Our view is that the evidence of a doctor, whether he be a police surgeon or anyone else, should be accepted, unless the doctor himself shows that it ought not to be, as the evidence of a professional man giving independent expert evidence with the sole desire of assisting the Court.'

See also: R v Lanfear [1968] 2 WLR 623; (1968) 52 CrAppR 176; [1968] 2 QB 77; [1968] 1 AllER 683. 

A police officer may give 'opinion evidence' as regards the indicia of the defendant. In R v Aldridge (1990) 20 NSWLR 737 the Court held at page 744:

'The third ground of appeal complains of admission into evidence of the police officer's opinion that Mrs Ryan was affected by intoxicating liquor at the time when the police were called to her house. Unassisted by authority, and ignoring what has always been permitted in charges of driving under the influence and in personal injury claims, I would have said that a police officer could give evidence of only the usual indicia upon which an opinion may be founded – smelling of liquor, slurred speech, inability to walk in a straight line, etc – leaving it to the jury (or other tribunal of fact) to draw its own conclusions from their own experience […]. 

The police officer's opinion was therefore admissible, although it should not have been permitted without first obtaining the factual basis for that purpose.' (emphasis added) 

See also: R v Davies [1962] 3 AllER 97; [1962] 1 WLR 1111; (1962) 46 CrAppR 292; Kennedy v Prestwood (1988) 7 MVR 561; Himson Mulas v R [1970 – 71] PNGLR 82 at page 99; Blackie v Police [1966] NZLR 910; Thomas v Snow [1962] QWN 7; Warning v O'Sullivan [1962] SASR 287 at page 289; R v Kelly [1958] VR 412; R v McKimmie [1957] VR 93 & R v Whitby (1957) 74 WN(NSW) 441. 

Therefore, for such 'opinion evidence' to be admissible police officers must give the basis of their opinion based on their own experience in dealing with persons affected by liquor both at work and socially. 

However, in Amos v Griffiths (1987) 5 MVR 430 it was held that an admission by a defendant that he/she had too much alcohol to drink was not an adequate substitute for evidence by a police officer that the defendant was visibly affected by alcohol. 

Refer also to the subsection which examines 'Opinion Evidence – Lay Persons' commencing on page 205. 

Furthermore, the law relating to the admissibility of sobriety tests is examined commencing on page 745.

[45.11] Cause Death

[45.11.1] Introduction 

The fact that a person dies as a consequence of the driving of a motor vehicle does not necessarily mean that the driver was driving either recklessly or dangerously. The driver of such a motor vehicle must be driving recklessly or dangerously prior to the accident. 

In The State v Kevin Daniel Marcellin (Unrep. N283; 12 December 1980; Papua New Guinea) Narokobi AJ, sitting alone, stated: 

'Whilst every effort should be made to avoid the temptation to look at death and adduce or infer negligent or dangerous driving, one should not be so cautious that one cannot probe into the quality of driving from the nature of injuries or even death [See The State v John Koe [1976] PNGLR 562].' 

In R v Himson Mulas [1969 – 70] P&NGLR 1 Ollerenshaw J, sitting alone, held at page 5: 

'The plain questions are: Was the accused person driving a motor vehicle on a road dangerously [or recklessly] that is dangerously [or recklessly] towards the other persons who might reasonably be expected to be on or near the road, and, if he were, did he thereby cause the death of another person?' [words in brackets added] 

The reckless or dangerous driving must be the substantial, although it need not have been the sole, cause of the death, see R v Curphey (1957) 41 CrAppR 78 at page 80; R v Gould (1963) 47 CrAppR 241; R v Hennigan [1971] 3 AllER 133; [1971] RTR 305; (1971) 55 CrAppR 262; The State v Elias Subang (No. 2) [1976] PNGLR 179 & The State v Jim Jobaga Ilivitaro [1977] PNGLR 249. 

In Kuraba Yangesen of Meremanda v The State [1978] PNGLR 465 the Supreme Court commented at page 468: 

'That death results as a result of dangerous driving does not alter the quality of the dangerous driving. It only results in a greater maximum sentence. Many dangerous drivers have been caught by police before any harm to them or others was caused at all.' 

See also: The State v Ilivitaro [1977] PNGLR 249; The State v Elias Subang (No. 2) [1976] PNGLR 179; R v Messulam Wauta [1973] PNGLR 714 at page 716 & R v Amos [1965] QWN 11.

[45.11.2] Points To Prove 

In order to prove that a person died as a consequence of reckless or dangerous driving, the prosecution must prove the following elements: 

·                     The identity of the deceased; 

·                     That he/she died on a certain date. As regards 'Limitation As To Time Of Death' section 209 of the Penal Code (Ch. 26) states (in part) 

'A person is not deemed to have killed another if the death of that person does not take place within a year and a day of the cause of death.' (emphasis added) 

 That section is examined commencing on page 620. 

·                     That he/she died from certain injuries; 

·                     That the injuries were suffered as a consequence of the alleged reckless or dangerous driving; and 

·                     That the reckless or dangerous driving was a substantial, not necessarily sole substantial, cause of the death.

[45.12] Defences

[45.12.1] Introduction 

The onus is on the defendant to 'fairly raise' the following defences. Upon being fairly raised the onus is on the prosecution to negative such defences 'beyond reasonable doubt'. 

Refer also the chapter which examines 'Proof Of Issues' commencing on page 68.

[45.12.2] Extraordinary Emergency 

As to whether this defence is available reference should be made to section [21.0] commencing on page 428. 

In R v Spurge (1961) 44 CrAppR 191 [[1961] 2 QB 205; [1961] 3 WLR 23; [1961] 2 AllER 88] Salmon LJ, delivering the judgment of the Court, held at page 197: 

'This court desires to emphasise that cases in which a mechanical defect can successfully be relied upon as a defence to a charge of dangerous driving must be rare indeed. This defence has no application where the defect is known to the driver or should have been discovered by him had he exercised reasonable prudence. To drive a motor - car in such circumstances is manifestly dangerous. The essence of the defence is that the danger has been created by a sudden total loss of control in no way due to any fault on the part of the driver.' (emphasis added) 

In Migi Barton v The State (Unrep. SC 213(M); 24 November 1981; Papua New Guinea) Kearney DepCJ and Bredmeyer J, with whom Miles J concurred, stated: 

'In Smith v R [[1976] WAR 97] it was stated, adopting and following R v Spurge [(1961) 2 QB 205] and R v Gosney [1971] 3 AllER 220]: 

"But the offence is not an absolute one; there must be some fault on the part of the driver; accordingly if, for example, a sudden emergency arises from a defect in the vehicle of which the driver was not aware, or from illness or accident of the driver, or from the act of another person, which results in the vehicle being driven with actual or potential danger to the public, then the driver may properly be held not to have been guilty of the offence of dangerous driving." 

[…] 

The grabbing of the wheel by the front seat passenger Clara, which made the driving dangerous, constituted the type of "sudden emergency" mentioned in Smith v R (supra); on the facts in this case it was an action which no ordinary man would have anticipated or been ready to deal with. The fault principle applies; full allowance must be made for the appellant's predicament; on the facts as proved in evidence the appellant had to be given the benefit of the doubt that an ordinary person possessing ordinary power of self – control and driving competence and experience could not reasonably have been expected to have acted other than as the appellant, who should accordingly have been acquitted.' 

In Haynes v Swain [1975] RTR 40 the Court held that if it has been found that the defendant knew or ought to have known of the mechanical defect, he/she cannot avail himself/herself of the defence even if the motor vehicle has been subsequently serviced by a garage. 

See also: R v Pius Piane [1975] PNGLR 52 & The State v Dela Tami of Yambo [1977] PNGLR 57. 

In Police v Robertson (1946) 41 MCR 1 the Court held that while a driver of a motor vehicle whose vision of the road ahead is seriously affected by anything such as a dazzle, glare or fog that person is under a definite obligation to take all steps necessary to avoid a collision with other persons or objects lawfully on the road even though this may involve stopping altogether; the standard of care to be exercised may well vary according to the time and the locality. 

To negate a possible defence of sudden sun blindness, evidence should be given as to how the vision of a driver would have been affected along the route when the motor vehicle was being driven recklessly or dangerously. Questions similar to the following should also be asked: 

·                     When and for what distance were you blinded by the sun?; 

·                     On previous occasions have you encountered similar problems on that particular stretch of road?; 

·                     What steps were necessary on prior occasions?; 

·                     Could you see any traffic approaching prior to being blinded by the sun?; 

·                     Did you reduce speed or try to stop?; 

·                     Were you wearing sunglasses?; and 

·                     What was the condition of the windscreen? 

See also: Simpson v Peat [1952] 2 QB 24; [1952] 1 WLR 469; [1952] 1 AllER 447.

[45.12.3] Intention 

Section 9 of the Penal Code (Ch. 26) states ( in part): 

'Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will […].' (emphasis added) 

See also: section 3 of that Code. 

An act or omission that occurs involuntary and unintentionally, and therefore, independently of the exercise of the will of a defendant, is an act or omission done in a state of 'automatism'. It appears to be roughly equivalent to what a layman might call a 'blackout'. 

In Broome v Perkins (1987) 85 CrAppR 321 the defendant was charged with 'Driving Without Due Care And Attention' and he raised the defence of 'Automatism'. 

Gildewell J, delivering the judgment of the Queens Bench Divisional Court held at page 332: 

'The question which is posed in the case can be rephrased to ask: "On the evidence, could the justices properly conclude that the defendant was not conscious of what he was doing and that his actions were involuntary and automatic throughout the whole of the five mile journey over which the erratic driving was observed?" If, during a part or parts of that journey, they were satisfied that his actions were voluntary and not automatic, at those times he was driving and clearly the way in which he was driving was such that they should properly have convicted him of driving without due care and attention. 

When driving a motor vehicle, the driver's conscious mind receives signals from his eyes and ears, decides on the appropriate course of action as a result of those signals, and gives directions to the limbs to control the vehicle. When a person's actions are involuntary and automatic his mind is not controlling or directing his limbs.' 

That test applies equally to the charges of: 

[i] 'Causing Death By Reckless Or Dangerous Driving', as provided for by section 38 of the Traffic Act (Ch. 131); and 

[ii] 'Reckless Or Dangerous Driving' as provided for by section 39(1) of the Traffic Act (Ch. 131). 

In R v Stubbles [1959] CrimLR 660 the Court held that the defence of 'automatism' is only available if the driver was suddenly and unexpectedly deprived of all thought and that such state was not connected with any deliberate acts or conduct on his/her part and arose from a cause which a reasonable person would have no reason to think and the driver did not anticipate, would occur. 

In Cooper v McKenna [1960] QdR 406 the Court held that post – traumatic 'automatism' can amount to a defence in a dangerous driving charge, but it is a defence which must be closely scrutinised. That Court also stated that 'blackout' is one of the first refuges of a guilty conscience and a popular excuse. 

See also: Hill v Baxter [1958] 1 AllER 193; (1957) 42 CrAppR 51; [1958] 1 QB 277; [1958] 2 WLR 76; R v Atkinson (1970) 55 CrAppR 1; Jeminez v R (1992) 66 ALJR 292 & R v Carter [1959] VLR 105. 

The law relating to the defence of 'Intention Or Accident' is examined commencing on page 434.

[45.13] Parties To Offences 

In R v Robert Millar (Contractors) Ltd & Robert Millar (1970) 54 CrAppR 158 Fenton Atkinson LJ, delivering the judgment of the Court, stated at page 165: 

'In our view, if a driver is sent out by his employer to drive a heavy vehicle, on a trip extending over some hundreds of miles carrying heavy loads with a dangerously defective front off – side tyre, by an employer who knows that the tyre is dangerous, and there is a serious risk of harm resulting to other road – users, then, if that tyre does burst and thereby causes an accident killing somebody, the employer is guilty of counselling and procuring death by dangerous driving. It is no answer to that to say that the driver of the vehicle at the time was said to be doing his best and was steering the vehicle properly, controlling it as well as he could and so on, and that there would have been no accident but for the bursting of the tyre. In our view, a man is driving in a manner dangerous to the public if he drives at some speed on the road a vehicle with a tyre which he knows is dangerous and defective and liable to burst at any moment.' (emphasis added) 

The law relating to 'Parties To Offences Generally' is examined commencing on page 406. 

[45.14] Alternative Charges Or Convictions 

[45.14.1] Causing Death By Reckless Or Dangerous Driving 

Section 39(2) of the Traffic Act (Ch. 131) states: 

'If upon the trial of a person for an offence against section 38 ['Causing Death By Reckless Or Dangerous Driving'] of the court is not satisfied that he driving was the cause of the death but is satisfied that he is guilty of driving as mentioned in subsection (1) [of section 39 of the Penal Code (Ch. 26)], it shall be lawful for the court to convict him of an offence under this section, [to wit 'Reckless Or Dangerous Driving'].' [words in brackets added] 

[45.14.2] Reckless Or Dangerous Driving 

Section 40(2) of the Traffic Act (Ch. 131) states: 

'Where a person is charged with an offence under section 39 ['Reckless Or Dangerous Driving'], and the court is of opinion that the offence is not proved, then, at any time during the hearing or immediately thereafter the court may, without prejudice to any other powers possessed by the court, direct or allow a charge for an offence under this section to be preferred forthwith against the person charged and may thereupon proceed with that charge [to wit 'Careless & Inconsiderate Driving'], so however that such person or his solicitor or counsel shall be informed of the new charge and be given an opportunity, whether by way of cross – examining any witness whose evidence has already been given against the defendant or otherwise, of answering the new charge, and the court shall, if it considers that the defendant is prejudiced in his defence by reason of the new charges being so preferred, adjourn the hearing.' [words in brackets added]

[45.15] Joinder Of Charges 

The facts of each particular case determine whether a defendant should be charged with a single charge of 'Reckless or Dangerous Driving' who during the course of a single journey commits a number of dangerous acts. In that determination a Court will consider the distances driven and the time period between each dangerous act. If the prosecution intends to rely on a single charge involving a number of dangerous acts on different roads then the wording of the charge must include the names of such roads. 

In R v Miller [1986] 2 QdR 518 Williams J, as a member of the Court of Criminal Appeal, stated at page 532: 

'It may often be just and reasonable for a prosecutor to charge two separate counts of dangerous driving arising from the manner in which a person drove his vehicle at a particular time and place. But it must be remembered, as was approved by this court in R v Juraszko [1967] QdR 128, that the one charge of dangerous driving may encompass a number of particulars of driving over a short distance.' 

See also: Whitby v Williams (1987) 5 MVR 268; Phillis v Coombe (1987) 5 MVR 331; R v Clark (1986) 4 MVR 245; Harvey v Lovegrove (1985) 2 MVR 380; Horrix v Malam [1984] RTR 112; Hayes v Wilson (1984) 1 MVR 198; R v Messulam Wauta [1973] PNGLR 714 & Ex parte Graham, Re Dowling [1969] 1 NSWLR 231. 

The law relating to 'Joinder Of Charges' is examined commencing on page 91.

[45.16] Compared With Driving Without Due Care & Attention Or Reasonable Consideration 

Whilst the offences of 'Reckless Or Dangerous Driving' and 'Driving Without Due Care And Attention Or Reasonable Consideration' are related to a departure of the standard of driving that is required from a reasonable, competent and prudent driver, the difference lies in the degree of departure from that standard. The offence of 'Driving Without Due Care And Attention Or Reasonable Consideration' which is examined commencing on page 725 is a 'minor departure' from that standard, whilst 'Reckless Or Dangerous Driving' is a 'gross departure', see R v Duncan (1953) 11 SASR 592.