Does intention matter? The erosion of ‘mens rea’ in dangerous driving laws

This article was originally published in the May 2025 edition of the Law Society Bulletin.

The concept of ‘mens rea’ and establishing an offender’s guilty mind is a foundational tenet of the criminal law. In most cases, the prosecution is required to establish both the mental element and physical element, or actus reus, of a particular offence beyond a reasonable doubt to secure a conviction.  

This doctrine does fade away in the case of strict liability offences in the road traffic space, such as speeding or driving an unregistered vehicle. This usually attaches to minor and, in most cases, expiable offences.

Increasingly, changes to South Australia’s criminal law insofar as it relates to offences involving motor vehicles have eroded to some extent the obligation to establish a guilty mind to subject a person to a significant criminal sanction. This reflects a strong focus on South Australia’s road traffic laws of the current and former State Governments. 

The compounding impact of these reforms is worth considering in some detail. 

An interesting and readily identifiable start point to this trend arose in February 2021 from the inconspicuously titled Statutes Amendment and Repeal (Budget Measures) Act 2021 (SA). Reforms arising from that Act commenced in mid-2021 and made considerable changes to the regime for impounding cars in South Australia. At the time the Society raised considerable concerns about the changes which, among other things, empowered the Commissioner of Police to dispose of an impounded vehicle 10 days after the initial 28-day confiscation period had elapsed and revoking the option for the owner of the vehicle to enter into a payment plan to pay the necessary cost of obtaining their vehicle. Concurrently, a “destruction fee” of $320 had been prescribed, requiring the vehicle owner to foot the bill for the destruction of their own property. 

It is important to note that the tougher measures did not only apply to the confiscation of vehicles that were used in deliberate or reckless acts of ‘hoon driving’ that endangered the lives of others. Importantly, the definition of “prescribed offence” on which the application of the confiscation regime hinged included offences such as driving an unregistered vehicle or driving unlicensed, both of which could be inadvertently committed. 

Shortly thereafter, the Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Act 2021 inserted amendments into the Criminal Law Consolidation Act 1935 in late 2021, which mandated an immediate licence disqualification in circumstances where a person is charged with a relevant offence.  

This was closely followed in September of that year with the Road Traffic (Drug Driving and Careless or Dangerous Driving) Amendment Act 2021. This hailed the commencement of significant changes to the offence of careless driving pursuant to section 45 of the Road Traffic Act 1961 that would follow. One reform progressed by the Bill was to expand the circumstances prescribed that would give rise to an aggravated section 45 offence. 

While changes such as providing for an aggravated offence where the offender was driving a stolen vehicle seemed appropriate, other circumstances such as where the offender had one or more passengers in the vehicle or was on a provisional or probationary licence or learner’s permit seemed less proportionate. 

The Bill further progressed changes to revoke provisions in the Road Traffic Act 1961 which required that a prosecution must not be commenced against an owner of a vehicle for an expiable offence unless the owner has given an expiation notice and the opportunity to expiate the offence in the case of extreme speed.  Accordingly, this would seemingly remove the ability of an owner of a vehicle to nominate a driver, especially in circumstances where their vehicle had been stolen. 

The decision of the District Court of South Australia in R v Campbell [2022] SADC 95 and the significant media attention that followed it placed a sharp focus on South Australia’s road traffic laws. 

The State Government sought to urgently bridge a perceived gap between the existing offences of causing death by dangerous driving, contrary to section 19A of the Criminal Law Consolidation Act 1935 and careless driving contrary to section 45 of the Road Traffic Act 1961. It did so by means of a new offence for a person who causes death, or serious harm, to another, carrying a maximum imprisonment terms of seven and five years respectively. This offence is the now section 19ABA of the Criminal Law Consolidation Act 1935. 

The wording utilised in the new offence is for a person who drives a vehicle or operates a vessel “without due care”, closely aligned with the wording of section 45 of the Road Traffic Act 1961. This is in contrast with the wording of the offence of causing death by dangerous driving which is where a person drives a vehicle or operates a vessel in a “culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person.” Simultaneously, the Bill amended section 45 of the Road Traffic Act 1961 to remove references to “death” and “serious harm” as aggravating features, preventing charging of the offence of aggravated careless driving in circumstances where either a death or serious harm had occurred.

The Law Society’s submission articulated the concerns of its Criminal Law Committee as to increasing the severity of a criminal sanction based simply on an outcome of a person’s actions, without regard to their state of mind. 

The Criminal Law Committee reflected that the moral opprobrium for an action and the reason it attracts a criminal sanction is the state of mind of the actor. Further, the justice of a situation is often achieved through consideration of this state of mind. In this regard, people are typically not punished and imprisoned for things they did not mean to do, such as where an accident occurs with tragic consequences. Instead, they are penalised for deliberate criminal actions, which justifies offences of attempt and conspiracy, even though the actions undertaken might not have actually created any criminal outcome. This is the justification for offences with intent having greater maximum penalties than offences of recklessness.     

The Society considers that to attach serious criminal sanctions to outcomes without regard to state of mind is not only contrary to modern understanding of the criminal law but is also fraught with the risk of causing unjust outcomes in the pursuit of criminalising a very specific situation. This is a very well understood matter of principle.  

Relevantly, the Bill tacked the new section 19ABA offence on to the mandatory licence disqualification provisions established the previous year by the Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Act 2021.

The eventual Statutes Amendment (Serious Vehicle and Vessel Offences) Act 2023 had a somewhat haphazard journey through State Parliament, with a revised version returning before the Legislative Council on 2 May 2023. 

Some welcome changes were made in the revised Bill, including removing mandatory licence disqualifications for a person convicted of aggravated careless driving where the aggravating feature is causing harm, and also an addendum to the wording of the new section 19ABA offence being the addition of the words “or without reasonable consideration for any person.” 

Nevertheless, the Law Society continued to oppose the new section 19ABA offence in principle, noting it merely sought to attach a greater sanction based on the outcome of one’s conduct without regard to their state of mind. In a similar vein, ongoing concerns were noted with respect to the expansion of immediate licence disqualification provisions which would now attach to the new offence and other offences, subjecting a person to a significant and sometimes life changing penalty of losing their licence when the offence they had been charged with had not yet been established. 

Against the background of ongoing changes to road traffic laws outlined above, and particularly the Statutes Amendment (Serious Vehicle and Vessel Offences) Act 2023, the Society had called for the establishment of a Parliamentary Committee to consider the Bill and the reforms proposed. No such Committee was established. 

It is important that community sentiment is adequately reflected in the law, but it is essential that changes to the law are considered and proportionate. 

Accordingly, legislators should remain cognisant of the consistency of such reforms with the principles and doctrines that underpin the criminal law and the extent to which they can be inadvertently eroded in the name of responding to community sentiment. 

Nathan Ramos was the Law Society’s Policy Manager from 2020 to April 2025. He now works as a solicitor with Craig Caldicott Lawyers.