DEFINING THE FAULT ELEMENTS OF DRIVING OFFENCES

• Citation: (2007) 19 SAcLJ 205
• Date: 01 December 2007
• Published date: 01 December 2007
• Author: Neil MORGAN BA (Oxon); MA (Sheffield) PhD (Western Australia) Professor of Law, University of Western Australia. Stanley YEO LLB (Hons)(University of Singapore); LLM (Wellington); LLM, PhD, LLD (Sydney); Professor of Law, National University of Singapore; Adjunct Professor of Law, Southern Cross University, Australia.

The legislation governing driving offences contains a bewildering array of fault elements, including “recklessness”, “rashness”, “negligence” and driving in a “dangerous manner” or “without due care and attention”. Not surprisingly, the courts have struggled to define these concepts in a consistent and readily accessible way, and differences have emerged between Malaysia and Singapore. This article analyses the different types of fault in the light of judicial pronouncements and the facts of selected cases. It argues that, with rigorous analysis, it is possible to explain the various fault elements in terms of degrees of culpability. However, it may be desirable to simplify the law and to rationalise the statutory penalties. Consideration should also be given to the adequacy of current laws in addressing the problem of deaths and injuries caused by drunken drivers.

I. Introduction

1 Motor vehicles have become an essential form of transport for people and goods, and driving is a daily activity for sizable numbers of the population. At the same time, it is undeniable that the motor vehicle is a potentially lethal device which is capable of causing death or serious injury whenever it is in motion, and that there are particular risks if the driver is intoxicated. It is essential for the criminal law to effectively target various forms of errant driving behaviour and, in Malaysia and Singapore, specific driving offences are contained in the Road Transport Act 19871 and Road Traffic Act2 respectively. The primary purpose of these offences is deterrence through threat of severe punishment in the hope that drivers will be more vigilant with respect to the safety of other

road users. These “road traffic legislation” offences are built around the concepts of careless, dangerous and reckless driving.

2 However, there is a complicated interplay between the specific road traffic offences and the offences of general application contained in the Penal Code. This is most apparent in cases where the accused person’s driving has resulted in death. Here, it is not uncommon to find that a charge is brought for the Penal Code3 offence of causing death by a rash or negligent act (hereinafter after called the “s 304A” offence) rather than for a road traffic legislation offence. In the very worst types of case, where the accused has used a motor vehicle as a “weapon” in order to kill or injure the victim, it is possible for the accused to be charged with murder.4 Furthermore, if the accused has driven in a manner that he or she knows is likely to cause death, the offence may be one of culpable homicide not amounting to murder under the Penal Code. In cases involving non-fatal injuries, it is also possible to invoke Penal Code offences such as “voluntarily” (in other words, intentionally or knowingly) causing hurt or grievous hurt, and the lesser offences of causing hurt (or grievous hurt) by rashness or negligence.

3 The first part of this article will, in the main, examine the fault elements of the s 304A offence and the principal driving offences contained in the road transport legislation. The problem with the fault elements is that they are undefined and have been left to the courts to interpret and apply as best as they can. The first objective of this article is therefore to explore the legislative definitions of the offences, the prescribed penalties and the case law, and to explain the likely scope of the various offences and fault elements. As will be seen, this is no easy task since there are many uncertainties and few ready or conclusive answers. Building on this discussion, we then canvass the difficulties that arise with respect to drivers who cause death or injury whilst under the influence of alcohol or drugs, and ask whether Singapore and Malaysia should follow the direction of some Australian jurisdictions. The article concludes by mapping (but not necessarily resolving) a law reform agenda.

II. Offences: Structure and penalties

4 The relationship between the offences with which we are mainly concerned, and their punishment, is best illustrated by means of a table:

Table One

The Offences and Their Penalties

Offence	Penalty (Malaysia)	Penalty (Singapore)
1. Driving without due care and attention	Section 43 RTA Maximum 1 year’s imprisonment or a fine of 4,000 to 10,000 ringgit, or both	Section 65 RTA First offence: Maximum 6 months’ imprisonment or a fine of $1,000, or both Subsequent offence: Maximum 12 months’ imprisonment or a fine of $2,000, or both
2. Negligent driving simpliciter	Section 279 Penal Code Maximum 6 months’ imprisonment or a fine of 2,000 ringgit, or both	Section 279 Penal Code Maximum 6 months or a fine of $1,000, or both
3. Negligence causing death	Section 304A Penal Code Maximum 2 years’ imprisonment	Section 304A Penal Code Maximum 2 years’ imprisonment
4. Reckless or dangerous driving simpliciter	Section 42 RTA First offence: maximum 5 years’ imprisonment or a fine of 5,000 to 15,000 ringgit, or both Subsequent offences: maximum 10 years’ imprisonment or a fine of 10,000 to 20,000 ringgit, or both	Section 64 RTA First offence: maximum 1 year’s imprisonment or a fine of $3,000, or both. Subsequent offences: 2 years’ imprisonment or a fine of $5,000, or both
5. Rash driving simpliciter	Section 279 Penal Code Maximum 6 months’ imprisonment or a fine of 1,000 ringgit, or both	Section 279 Penal Code Maximum 6 months’ imprisonment or a fine of $1,000, or both

6. Reckless or dangerous driving causing death	Section 41 RTA Minimum 2 years’ imprisonment, maximum 10 years or a fine of 5,000 to 20,000 ringgit, or both	Section 66 RTA Maximum 5 years’ imprisonment5
7. Rashness causing death	Section 304A Penal Code Maximum 2 years’ imprisonment	Section 304A Penal Code Maximum 2 years’ imprisonment

5 To assist with the exercise, the various fault elements of the offences to be examined have been divided into four clusters, namely, (i) careless driving; (ii) inadvertent risk-taking; (iii) dangerous driving; and (iv) advertent risk-taking driving. Under the first cluster are the fault elements of the first three offences in the table: driving without due care and attention, negligent driving simpliciter, and negligent act causing death. All of these involve an objective failure to meet the standards that are expected of a reasonable, careful driver. The term “inadvertent risk-taking” is used as shorthand for those cases where the accused has failed to recognise and take account of an obvious risk. Although this may be regarded as a form of carelessness, some cases categorise it as a species of recklessness. The third cluster comprises the fault element of dangerous driving (part of offences 4 and 6 in the table). Dangerous driving also involves an objective inquiry but, given the much higher penalties that it attracts, it should be distinguished from careless driving. The offences in the final cluster involve the subjective fault element of advertent risktaking; namely a rash act causing death and reckless driving.

III. Careless driving

6 The use of the adjective “careless” to describe this cluster identifies the essential nature of the types of fault under consideration. The accused is charged with committing an offence because he or she breached the duty of care expected of a reasonable driver. This involves objectively measuring the accused’s conduct against what a reasonable driver would have done in the same or similar circumstances. The accused’s subjective belief that he or she was driving carefully, or that there was no risk in driving in that manner, is therefore immaterial.

7 The first of the fault elements under the “careless driving” cluster is that of driving a motor vehicle on a road “without due care and attention” under s 43 of the Malaysian Road Transport Act and s 65 of the Singaporean Road Traffic Act (hereinafter called the “driving without due care and attention” offence). This offence (often called “careless driving”) is comparable with that of negligent driving simpliciter under s 279 of the Penal Code, which involves driving on a public way “in a manner so negligent as to endanger human life, or be likely to cause hurt or injury to any other person”.6 However, the offence of driving without due care and attention is easier to establish since it does not require the prosecution to prove that the accused’s negligent driving had actually endangered life or had been likely to cause injury. This difference has rendered the s 279 offence redundant in practice. There is also nothing to be gained by way of penalty from using the Penal Code offence; as Table One shows, in Malaysia the statutory penalty for s 279 is significantly lower than for driving without due care and attention,7 and in Singapore the punishments are identical.8

8 Some interesting questions have arisen regarding the degree of carelessness required for the offence of driving without due care and attention and its relationship with the related offence under s 304A. In Abdul bin Palaga v PP,9 the Malaysian High Court held that the level of carelessness required for the road traffic offence is lower than that for the s 304A offence. What, then, is the degree of carelessness required for s 304A? This seemingly simple question has generated some tortuous case law. Under Malaysian law, there are some case authorities specifying the civil standard and others which seem to have adopted an intermediate standard falling somewhere between gross negligence under the English common law of manslaughter and the civil standard of negligence.10 If an intermediate standard of negligence is required for s 304A, it would be both just and logical to prescribe the civil standard of negligence for the offence of driving without due care and attention. This is because, being a

less serious offence than...