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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Dangerous Navigation Causing Death


One of the most serious boating offences a person can commit is dangerous navigation occasioning death. This offence is contained in section 52B of the Crimes Act 1900. There is precious little case-law surrounding dangerous navigation, but the law on dangerous driving is a good guide as to the elements of this offence.

A few principles can be discerned from the case law on dangerous driving are as follows.

  • The test is objective. In other words, it makes no difference whether the operator thought what they were doing was dangerous or not.
  • Whether or not that manner of operation was “dangerous” will depend upon all the circumstances in which it took place, including time of day, the water conditions and the weather.
  • Some conduct may be objectively dangerous no matter the circumstances
  • There needs to have been a serious breach of proper management and control of the vessel such that a real danger is created.

The legislation also sets out that a person who is operating a vessel under the influence of intoxicating liquor or of a drug is deemed to be doing so in a “dangerous” fashion.

Navigation

The use of the term “navigation” does not mean that the accused person must have been the “navigator” of the vessel (as opposed to the captain, or first mate. The courts have defined navigation as including “driving, steering or helming” a vessel – although where different persons are undertaking different tasks, careful attention will need to be paid to this issue.

Occasioning Death

The legislation requires that there must have been an “impact” – in other words a collision – that occasions the death of a person for this offence to be made out.

The courts have directed that, in order to “cause” a result, a defendant’s actions must have made a “substantial or significant contribution” to the person’s death. These terms are vague as there is no way to definitively set out what can constitute “occasioning”.

Defences

The relevant legislation includes a specific defence. It is a defence to the charge if the death was “not in any way attributable” to the intoxication of the operator or to the speed or manner in which the vessel was controlled.

In other words, if the vessel was being operated dangerously, there is a collision and someone dies as a result, a defendant can escape liability if the death was in no way a consequence of the dangerous operation.

Penalties

The standard offence carries a maximum penalty of 10 years imprisonment. If the offence is committed “in circumstances of aggravation” the maximum penalty increases to 14 years. Circumstances of aggravation include:

  • Having a blood alcohol concentration above 0.05
  • Exceeding the speed limit
  • Being involved in a police pursuit, or
  • Being “very substantially impaired” by alcohol or drugs

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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