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Negligent Driving in NSW
causing grievous bodily harm
 or death


s.42(1) Road Transport (Safety and Traffic Management) Act 1999 NSW

 

A person who drives a motor vehicle negligently in NSW is guilty of an offence:

Section 42 Negligent, furious or reckless driving

(1) A person must not drive a motor vehicle negligently on a road or road related area.

Maximum penalty:
(a) if the driving occasions death - 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence), or
(b) if the driving occasions grievous bodily harm - 20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence), or
(c) if the driving does not occasion death or grievous bodily harm - 10 penalty units.


See: http://www.austlii.edu.au/au/legis/nsw/consol_act/rtatma1999412/s42.html for the full text of s.42 RT(S&TM) Act 1999.


This offence is committed by anyone who drives a motor vehicle negligently. The offence is committed even if there is no accident or collision, no injury or death, or no interference with other traffic (see subsection 3). The police do not need to adduce any evidence of an injury or death in order to gain a conviction for this offence: see DPP(NSW) v Yeo and Anor [2008] NSWSC 953 at paragraph 30. Evidence of injury or death is relevant only when the prosecution is seeking the higher penalties that flow from those outcomes.

The essential elements of a s.42(1) offence are that the accused drove a motor vehicle on a road, or a road related area, in a manner that was negligent.

"Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances." R v Buttsworth (1983) 1 NSWLR 658 at 672.


In the case of Mitchell v R [2009] NSWCCA 95 the NSW Court of Appeal heard an appeal against a sentence that had been imposed on a driver in respect of two charges laid under s.42 RT(S&TM) Act. The accused was the driver of a truck that collided with a parked vehicle. Two persons standing next to the vehicle were hit - one died and the other was seriously injured.

The elements of each of the two charges were identical. Particulars of the first charge alleged that the offence resulted in a death, and the particulars of the second charge alleged that the offence resulted in grievous bodily harm.

In Mitchell's case the driver was convicted of two counts of driving a motor vehicle negligently on a road and he was sentenced seperately for each count. In that case a single act of negligent driving (driving too fast in a fog) caused the accident. A single act of negligent driving resulted in a single accident with two victims. Where there is one act of negligent driving there is one offence only against s.42 and a driver ought not be found guilty of two offences merely because two people are injured. 

The driver in Mitchell's case originally appealed against conviction but for unstated reasons he abandonned that ground of his appeal.  In my opinion, he would have won an appeal against conviction for one count had he pursued it. Instead, he pursued his appeal against the length of his licence loss period only and he did not complain about suffering two convictions. So the Court of Appeal was never asked to decide  - and it did not address - whether or not it was correct for the appellant to be found guilty of two s.42 charges when there was only one act of negligent driving.

I have represented people charged with two sequences or counts of negligent driving under s.42(1) RT(S&TM) Act when there is a single act of negligent driving involved. The uncontested police evidence was that a single act of negligent driving resulted in the two persons being injured. At the hearing of the plea I argued that my client should not be found guilty of two offences under s.42(1).  The accused pleaded guilty to the allegations made in each charge and then asked the court to strikeout one of the charges on the basis that they were identical and duplicitous.

Magistrates are unlikely to agree that the number of victims goes to penalty only. One Magistrate said he did not agree that the charges were duplicitous. He said two charges should be laid when there are two victims. He asked "that means if two people are killed then you can lay only one count of culpable driving?"!

A culpable driving charge is laid under s.52A Crimes Act which is quite different to s.42(1) RT(S&TM) Act. Culpable driving requires an act of dangerous driving causing a person's death. A single death is an essential element of that offence.  Multiple deaths can not be joined into a single charge under s.52A because that would be bad for duplicity - see Johnson v. Miller

Secondly, for a charge laid under s.42(1) RT(S&TM) Act, the elements of the offence remain exactly the same regardless whether an act of negligent driving causes multiple deaths or a single death or no deaths or injuries. The only thing that changes if there is a death are the particulars which relate to the question of penalty – not to the question of guilt.

Culpable driving is an indictable offence that is heard before a jury, whereas negligent driving is a summary offence that is heard and determined by a court without a jury. For the purpose of determining guilt in a negligent driving case the Magistrate performs the function of the jury and determines whether the prosecution has proved beyond reasonable doubt each of the elements of the offence. If the charge is found proved the Magistrate then performs the function of a judge in passing sentence, and for that purpose the court can then hear evidence in respect of sentence. It can hear evidence from the accused in respect of mitigation of penalty and evidence from the prosecution in respect of aggravation of penalty. It is at this point of the case that the court will consider whether there is sufficient evidence of any death or grievous bodily harm.

Typically, the prosecution leads evidence of the injuries or deaths occasioned by the driving during the hearing prior to judgment. But there is no reason why evidence of injuries and/or death can not be alleged  - or challenged - at the  sentencing stage after a finding of guilt has been made. 

An accused person is entitled to decline to lead any evidence in defence of a charge. They can require the prosecution to prove every element of the offence without anyone saying a word in their defence. The accused can sit silent during the hearing and hope that the prosecution fails to prove, for example, that he or she was the driver of the vehicle at the time of the accident, or fail to prove that the vehicle came within the definition of "motor vehicle". If that strategy fails and the charge is found proved against the accused.
If the charge is found proved the trial stage is complete and the case moves to the sentencing stage. Then the accused has the right to call evidence on the issue of penalty. He or she is entitled to get in the witness box and give evidence to dispute any allegation that the victim suffered injury in the accident, or dispute that the death was caused by the accident. In the event of dispute, the prosecution carries the burden of proving beyond reasonable doubt the existence and causation of one or more deaths and/or one or more victims of grievous bodily harm.

In some cases, it might be appropriate for counsel to object to any evidence of injury or death being alleged against the accused prior to any finding of guilt being made.  Police evidence of injury or death is irrelevant to the proof of the charge and if admitted prior to judgment could be admitted unfairly against the accused. Such evidence could, in some cases, be prejudicial to the accused especially if issue is going to be taken with those allegations during the sentencing stage of the case - should it come to that.  It might be impossible for an accused to exercise his right to silence during the hearing of the charges while at the same time want to dispute allegations raised during the hearing that he caused a death or caused grievous bodily harm. If the accused wants to dispute any aspect of the alleged injury or death then the only fair time to raise those allegations is after judgment so the accused's right to remain silent during the hearing is not compromised. Otherwise the allegations risk being admitted into evidence at a time when the accused can not refute them. This might prejudice the interests of the accused by creating bias in the mind of the magistrate.  Where, for example, the prosecution evidence is that the accused collided with another vehicle after failing to give way at an intersection it is quite simple for the police to say nothing about the human consequences of the collision until after judgment is received.

Because the court is not required to hear any evidence about any injury or death until after judgment is delivered, it is impossible for any evidence about injuries or deaths to turn a single count of negligent driving into multiple counts of negligent driving.


The police are not required to allege in the charge any matter that goes to penalty only. The matters that go to penalty are not elements of the offence. In my opinion, the police could gain a conviction even if they don't mention anything in the charge about the victim suffering grievous bodily harm. The particulars of injury do not form part of the charge and on one view they should not even be there. They should be provided to the accused separately to the charge.

For other offences, e.g. drink driving, where penalties increase if a person has prior convictions or has a particular type of licence or is of a particular age, the existence of those matters which go to penalty are never alleged in the charge. The prior convictions are alleged after the accused is found guilty of the offence and the accused can take issue with any alleged priors after being found guilty. Likewise, under s.42(1) a person can plead guilty to the offence and then during the sentencing process take issue with the injuries alleged to have resulted from the accident. If there is disagreement as to whether a death or injury was caused by the negligence of the accused, there will be a hearing on that aspect only.

No matter how many persons are injured or killed in an accident, the summary of the offence - the "Full Facts" -  will remain exactly the same and the penalty is likely to be exactly the same whether there are multiple charges or a single charge.  However, that does not mean a defendant should capitulate and plead guilty to two serious charges and get two sequences on their driving or criminal history when only one should be there. There is a significant disadvantage to a person having multiple prior convictions for this offence on their record when they should have only one.

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