In the recent case of McCoy v Police [2023] NZCA 108, the Court of Appeal was asked to determine whether a display of aggressive driving was against the law and constituted dangerous driving.

The facts were that the victim got out of his car when the road was clear, and McCoy drove past and hurled some abuse at him. McCoy drove on but then decided to do a U-turn and head back towards the victim. He stopped in the middle of the road, yelled a racial slur at the victim and drove his vehicle onto the wrong side of the road.

McCoy’s vehicle stopped just past and in front of the victim’s vehicle. McCoy then threatened to damage the victim’s vehicle and reversed at a moderate speed towards it. The victim moved so that he was standing between the two cars, and this caused McCoy to stop reversing.

The victim said he would call the police, and McCoy responded that he would be back with his friends before he drove off.

What is dangerous driving?

Under sections 7(2) and 35(1)(b) of the Land Transport Act 1998, if you drive a motor vehicle at a speed or in a manner which, having regard to all the circumstances, is or might be dangerous to the public or to a person, then this is an offence.

The case of Johnson v Police [2022] NZHC 266 states that the prosecution must demonstrate that the driving, when viewed objectively, was dangerous and that there was some fault on the driver’s part that caused that situation. The relevant standard for assessing fault is that of the competent and experienced driver, which is to be measured against the manner of driving in the circumstances of the case.

Strict liability

For some offences, the prosecution must prove both the physical and mental elements of an offence. For example, to be guilty of theft, the prosecution must prove that you took an item and, secondly, that you intended to deprive the owner of that item permanently.

By contrast, dangerous driving is a strict liability offence. That means a defendant is liable for committing an act, regardless of what their intent or mental state was when doing so.

In other words, the prosecution does not need to prove you intended to drive dangerously, or that you decided to do so, because it is not an ingredient of the offence.

Circumstances

While the objective test for dangerous driving excludes considerations of a defendant’s state of mind, does this mean that observable conduct is necessarily irrelevant? The act of reversing a vehicle, even on the wrong side of a road, towards persons or property may not be dangerous if undertaken with due care and attention. By contrast, if the same driving was accompanied by a threat to thereby cause damage in a targeted way, this could convert lawful driving into dangerous driving.

Conclusion

Although a person’s state of mind does not need to be proved for the offence of dangerous driving, contemporaneous statements demonstrating a person’s apparent intention should be considered as a relevant circumstance. In other words, observable conduct, such as utterances and gestures, are important considerations.

In McCoy’s case, his aggressive words and behaviour combined with the manner of his driving were found to constitute dangerous driving.

McCoy’s deliberate course of action, which included yelling threats and abuse and reversing up the wrong side of the road towards the complainant’s vehicle, was dangerous driving. While the critical question was the nature of his driving, the Court of Appeal found that McCoy’s apparent intention disclosed by his contemporaneous statements should not be excluded from consideration as a relevant circumstance.