Offences Causing Death or Serious Injury
A person who drives a motor vehicle in a criminally negligent way and causes the death of someone else may be charged and convicted of manslaughter (s156, Criminal Code Act 1924 (Tas)). A person in charge of a vehicle is under a duty to use reasonable care to avoid danger to human life (s150), and any breach of this duty that amounts to ‘culpable’ or ‘gross’ negligence will constitute manslaughter. This is a very high degree of negligence, much higher than the normal degree of negligence in civil matters. There must be pronounced disregard for the life and safety of others.
Manslaughter is a crime which must be tried before a jury, and the punishment may be a term of imprisonment up to a maximum of life imprisonment, but is usually in the range of 18-30 months. However, because in the past some juries were reluctant to convict drivers of manslaughter, the Criminal Code was amended to create a new offence of ‘causing death by dangerous driving’.
Causing Death by Dangerous Driving
This crime, along with manslaughter, is one of the few crimes where a ‘responsible citizen’ with no previous criminal record, if convicted, may be sent to jail. The crime involves causing death by driving a motor vehicle at a speed or in a manner that is dangerous to the public, having regard to all the circumstances of the case (s167A). The ‘public’ includes a passenger. Where a motor vehicle is driven on a public street, the nature, condition and use of the street, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the street, is taken into account.
This crime is a statutory alternative to manslaughter and sentences are normally less than for manslaughter. Once the act of driving has been shown to be voluntary and intentional it is for the jury to decide whether the driving is objectively dangerous. The driver’s opinion on this point is irrelevant.
A person who drives dangerously, but does not kill anyone as a result, can be charged with ‘dangerous’ (or ‘reckless’) driving under the Traffic Act (s32(1)). In other respects, the offence is the same as causing death by dangerous driving. An accused can elect to have the charge tried by either a magistrate in the Magistrate’s Court or judge and jury in the Supreme Court.
A driver may also be charged with negligent driving under the Traffic Act (s32(2)). The manner of their driving in all the circumstances is examined to determine if the manner of driving has been negligent. It is a lesser offence than dangerous driving and the degree of negligence which must be proved will therefore be less. This charge is triable before a magistrate.
Driving, Drugs and Alcohol
Tasmania, like all other states, has special legislation to punish those who mix excess alcohol consumption and/or drugs with driving. The Road Safety (Alcohol and Drugs) Act 1970 (Tas) is described as an Act of Parliament ‘to protect the public against certain persons who drive vehicles after consuming intoxicating liquor or drugs and to restrict the right of such persons to hold driver’s licences.’
The meaning of ‘driving’ is very wide, and includes a person having charge of a motor vehicle, steering a vehicle under tow and, depending on the circumstances, extends to a person who has just got out of a stationary vehicle.
‘Drink’ and ‘Drunk’ Driving
There is an important distinction between ‘drink’ driving and ‘drunk’ driving. ‘Drink’ driving is the term commonly used to describe driving with a blood alcohol content in excess of the prescribed limit (currently 0.05%). This offence is made out simply by the blood alcohol concentration being in excess of the prescribed limit, and has nothing whatsoever to do with the state of sobriety and driving ability of the person.
Three 285ml (10oz) glasses of normal beer, three glasses of wine or three nips of spirits (whether mixed or not) in an hour will put the average person over the limit. After the first hour it takes only one glass of beer per hour to keep a person topped up. It may take men of a smaller than average frame, and women, up to two-thirds less alcohol to put them over the limit. The average person with a healthy liver will lose 0.015% per hour if they stop drinking alcohol. This rate is not affected by a sleep, a shower or multiple cups of coffee. Time is the only cure.
Drunk’ driving is when the consumption of drink and/or drugs has substantially affected the person’s ability to drive. This leads to the serious charge of driving under the influence (DUI). The person may be charged with DUI regardless of their blood alcohol content but it is more common for the charge of DUI to be laid in cases of a high blood alcohol content as a high blood alcohol content is more likely to adversely affect driving ability.
Evidence in support of a charge of DUI will usually consist of observations made by police officers of the person’s ability to control the motor vehicle driving. However, it can also include evidence of the person’s allegedly drunken condition after their vehicle was stopped.
Penalties for the offence vary according to the circumstances of the commission of the offence. The more important factors include the degree to which other road users were endangered by the person’s driving, their driving record, and their blood alcohol reading. There are mandatory minimum penalties for alcohol related driving offences. For example, if a person is in breach of section 6(2) of the Road Safety (Alcohol and Drugs) Act 1970, the minimum fine is 2 penalty units and the maximum is 10 penalty units. The period of disqualification is for at least 3 months, and can be up to 12 months, and a justice has the discretion to impose a 3 month term of imprisonment.