We have outlined these changes below, however, nothing here should be taken as legal advice or a substitute for speaking to a lawyer from our office directly. If you have any questions you can reach one of us on 08 63238613.
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Dangerous Driving Causing Grievous Bodily Harm (‘GBH)
Section 59 of the Road Traffic Act 1974 (WA)
It is an offence pursuant to section 59(1) of the Road Traffic Act 1974 (WA) (‘RTA’) to cause harm to someone by driving dangerously causing injures to someone resulting in death, or grievous bodily harm, or even bodily harm.
There a several ways a driver can be convicted of Dangerous Driving. A driver commits dangerous driving if they are involved in an incident causing the death or grievous bodily harm to another person and the driver was, at the time of the incident, driving the motor vehicle:
- while under the influence of alcohol;
- while under the influence of drugs;
- while under the influence of both alcohol and drugs; or
- in a manner (including speed) that is considered dangerous to the public or to any person.
Burden of Proof
In the case of The State of Western Australia v Gibbs, the court noted that there was “no longer any requirement that causation be proved as an element of the offence. The prosecution need merely establish that the ‘incident’ occasioned death or grievous bodily harm.” As such, the burden of proof has now been shifted onto the defendant whom must prove that the accident was not caused by:
- The fact that they were under the influence; or
- Their manner of driving.
The court in Kaighin v The Queen considered what constituted as ‘dangerous” to the public or to any person. The test for ‘dangerous’ driving is an objective one (i.e. would a reasonable person consider the driving to be dangerous?)
They noted that negligent driving (i.e. failing to keep a proper lookout on a road where there is no other traffic or persons in the vicinity) is not ‘dangerous’ driving. For driving to be considered ‘dangerous’, the circumstances must be in reality be dangerous and not speculative. It must be actually or potentially dangerous to the public or another person. As such, a momentary lapse of attention may constitute ‘dangerous’ driving under the right conditions.
Pursuant to Section 59B(6) of the Road Traffic Act (WA) provides that it is a defence (to be proven by the defendant) if death, grievous bodily occasioned by the incident was not in any way attributable (as relevant):
(a) to the fact that they were under the influence; or
(b) to their manner of driving.
It is immaterial if the death or grievous bodily harm caused to the victim might have been avoided if the victim had taken proper precaution or received proper care and treatment. Where grievous bodily harm is caused, it is not a defence if the victim undergoes medical treatment which subsequently causes death, if the treatment was done properly and in good faith.
- if the offence is committed in circumstances of aggravation, to a fine of any amount and to imprisonment for up to 14 years (if grievous bodily harm is caused), or up to 20 years (if death is caused); or
- in any other circumstances, to a fine of any amount and to imprisonment for up to seven years (if grievous bodily harm is caused), or up to 10 years (if death is caused); and
- disqualification from holding or obtaining a driver’s licence for a minimum of two years.
Summary conviction penalty for this offence is only applicable where death of another person is not caused. The penalty is for imprisonment for up to three years or a fine of 720 Penalty Units (equivalent to $36,000.00 at the time of writing) and disqualification from holding or obtaining a driver’s licence for a minimum of two years.
Circumstances of Aggravation
A person commits the offence in circumstances of aggravation if at the time of the alleged offence, the person:
- was driving the vehicle without the consent of the owner or person in charge of the vehicle;
- has never held a prescribed authorisation (i.e. learner’s permit, extraordinary licence or driver’s licence granted by Australia or an external licensing authority);
- has his prescribed authorisation refused, suspended or disqualified;
- was not authorised to drive a vehicle of the kind concerned;
- was in breach of his extraordinary licence;
- was driving at 30km/h or more above the speed limit; or
- was driving to escape pursuit by a police officer.
One of the relevant cases on this area is Hunt v Callaghan  WASC 10 , paragraphs from 131 to 135.
Feel free to contact our office if you have any legal advice questions or have been questioned or charged with Dangerous Driving or a similar offence.