Causing death or injury by driving

OFFENCES RELATED TO DEATH OR INJURY
Where a person has been killed or injured in a motor vehicle accident as a result of the driver driving with undue care, or dangerous or reckless driving, the person responsible may face serious charges. As such, these matters are much more serious than regular traffic offences and are considered criminal offences. They are not to be dealt with by duty solicitors other than on the basis of a remand or bail application. The following information is included for completeness.

OFFENCES RELATED TO DEATH OR INJURY

Where a person has been killed or injured in a motor vehicle accident as a result of the driver driving with undue care, or dangerous or reckless driving, the person responsible may face serious charges. As such, these matters are much more serious than regular traffic offences and are considered criminal offences. They are not to be dealt with by duty solicitors other than on the basis of a remand or bail application. The following information is included for completeness.

Reckless and dangerous driving which causes death or harm

Causing death
Causing harm

Causing death

It is an offence to drive a vehicle in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person, if that conduct causes the death of another [Criminal Law Consolidation Act 1935 (SA) s 19A].

The maximum penalty for a first offence which is a basic offence is imprisonment for fifteen years and mandatory licence disqualification for at least ten years. The maximum penalty for a first offence which is an aggravated offence or for a subsequent offence is imprisonment for life and mandatory licence disqualification for at least ten years [s 19A].

Instant Loss of Licence

If a driver is formally charged with the offence of causing death by dangerous driving (via the laying of an Information in court), the Commissioner of Police must give the driver a notice of immediate licence disqualification or suspension (ILOL notice). The Commissioner of Police must ensure the prescribed details of the notice are forwarded to the Registrar of Motor Vehicles. The Registrar of Motor Vehicles must then post a separate notice of licence disqualification or suspension to the driver [Criminal Law Consolidation Act 1935 (SA) s 19AE(1-4)].

A police officer may issue an ILOL notice where they reasonably believe that a driver has committed the offence of death by dangerous driving [Criminal Law Consolidation Act 1935 (SA) s 19AF(1)]. The prescribed period of disqualification under an ILOL notice issued in such circumstances is up to 12 months [s 19AF(17)].

An ILOL notice must be in writing, and personally served on the driver, or if the driver consents to receiving the notice by email, via the nominated email address provided [Criminal Law Consolidation (General) Regulations 2021 (SA) reg 6A]. The ILOL notice must contain the prescribed particulars as defined in Schedule 1 of the Criminal Law Consolidation (General) Regulations 2021 (SA). A driver who receives a ILOL notice may apply to the Magistrates Court for an order lifting the disqualification or suspension. The Court may only make such an order if satisfied that exceptional circumstances exist such that it is appropriate to do so, and the person does not pose a substantial risk to the public if an order is made [s 19AE(6); s 19AF(6)].

Causing harm

It is an offence to drive a vehicle in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person and by that culpable negligence, recklessness or other conduct, cause harm to another [see Criminal Law Consolidation Act 1935 (SA) s19A(3)]. Where serious harm was caused to a person, the maximum penalty for a first offence which is a basic offence is imprisonment for fifteen years and mandatory licence disqualification for ten years or longer as the Court sees fit. The maximum penalty for a first offence which is an aggravated offence, or for a subsequent offence is imprisonment for life and mandatory licence disqualification for ten years or longer as the Court sees fit [see s 19A].

Where serious harm was not caused the maximum penalty for a first offence which is a basic offence is imprisonment for five years and mandatory licence disqualification for one year or longer as the Court sees fit. The maximum penalty for a first offence which is an aggravated offence or for a subsequent offence is imprisonment for seven years and mandatory licence disqualification for three years or longer as the Court sees fit [see s 19A].

Aggravated driving without due care

It is an offence to drive without due care or attention or without reasonable consideration for other road users [see Road Traffic Act 1961 (SA) s 45].

Where a court convicts a person for an aggravated offence against this section, the maximum penalty is imprisonment for 12 months and mandatory licence disqualification of not less than six months [see Road Traffic Act 1961 (SA) s 45(2); Arthur v Police (2008) 101 SASR 529; [2008] SASC 213; Police v Jachmann (2010) 57 MVR 171; [2010] SASC 345; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5(b)]. The 6-month disqualification is not mandatory if the aggravating circumstances were that the offence caused harm to a person if that harm fell short of serious harm [s 45(2a)].

An aggravated offence is:

one that caused harm to another (until 1 January 2024, an offence of driving without due care was only aggravated if it caused the death of or serious harm to another [Road Traffic Act 1961 (SA) s 45(3)(a); see also s 45(5) for the definition of “harm”]
an offence which was committed in the course of attempting to escape pursuit by police [s 45(3)(b)(i)]
one where at the time of the offence, the offender was disqualified or suspended from driving [s 45(3)(b)(ii)]
one where at the time of the offence, the offender had a blood alcohol content of 0.08 or more [s 45(3)(b)(iii)]
an offence where the offender was driving at excessive speed [s 45A], driving under the influence [s 47] or driving with a prescribed drug present in their oral fluid or blood [s 47BA]
one where at the time of the offence the offender was driving a stolen motor vehicle or driving the motor vehicle without the owner’s consent [s 45(3)(b)(v)]
one that is committed knowing that there were passengers in, or on, the motor vehicle [s 45(3)(b)(vi)]
one that is committed whilst holding a provisional licence, probationary licence, learner’s permit, interstate provisional licence or interstate learner’s permit [s 45(3)(b)(vii)]; or
committed while the offender was not the holder of a valid driver’s licence or learner’s permit [s 45(3)(b)(viii)].

Other related offences include cause death or physical harm by driving without due care and failure to satisfy the statutory obligations of a driver in relation to a car accident [Criminal Law Consolidation Act 1935 (SA) s 19AB].

Aggravated extreme speed

Pursuant to s 19ADA of the Criminal Law Consolidation Act 1935 (SA), a person drives at an extreme speed if they exceed the speed limit:

by 55km/hr or more where the speed limit is 60 km/hr or less, or
by 80km/hr or more where the speed limit is more than 60 km/hr.

There are exceptions for emergency vehicles (as defined in 19ADA(10) of the Criminal Law Consolidation Act 1935 (SA) and reg 5 of the Criminal Law Consolidation (General) Regulations 2021 (SA)).

The maximum penalty is 5 years imprisonment for an aggravated offence.

According to s 5AA(1d) of the Criminal Law Consolidation Act 1935 (SA), an offence against s 19ADA will be aggravated if:

it caused harm to a person (until 1 January 2024, driving at extreme speed was only aggravated if it it caused death or serious harm to a person)
the motor vehicle used for the offence was stolen or being driven without consent and the offender knew this
it was committed in the course of attempting to escape police pursuit
there were one or more passengers in or on the motor vehicle
the driver held a probationary, provisional or learner’s permit
the driver was driving unlicensed or disqualified or their licence was suspended
the driver had 0.08 grams or more of alcohol in 100 millilitres of blood
the driver was driving under the influence
the driver was driving with a prescribed drug in their system.

Mandatory minimum disqualification periods also apply following conviction. For a first offence, 5 years (aggravated offence); 5 years (subsequent offence).

Instant Loss of Licence

If a police officer reasonably believes that a driver has committed the offence of driving at extreme speed, they may issue an instant loss of licence notice 'ILOL notice' [Criminal Law Consolidation Act 1935 (SA) s 19AF(1)].

A driver who receives a ILOL notice may apply to the Magistrates Court for an order lifting the disqualification or suspension. The Court may only make such an order if satisfied that exceptional circumstances exist such that it is appropriate to do so, and the person does not pose a substantial risk to the public if an order is made [s 19AF(6)]

The ILOL notice must be in writing, and personally served on the driver, or if the driver consents to receiving the notice by email, via the nominated email address provided [Criminal Law Consolidation (General) Regulations 2021 (SA) reg 6A].

A notice of immediate licence disqualification or suspension must contain the prescribed particulars as defined in Schedule 1 of the Criminal Law Consolidation (General) Regulations 2021 (SA).

Causing death or injury by driving : Last Revised: Mon May 21st 2012

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