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Culpable driving causing death in Victoria CRIMES ACT 1958 – SECT 318

Introduction:

In Victoria, Australia, the law recognises the seriousness of this situation under Section 318 of the Crimes Act 1958. This section deals specifically with the offence of culpable driving causing death, outlining the elements of the crime, potential penalties, and available defences.

Understanding Culpable Driving Causing Death in Victoria:

The offence of culpable driving causing death is created by the Crimes Act 1958 s318(1).

The offence has the following three elements, each of which the prosecution must prove beyond reasonable doubt:

  1. a) The accused was driving a motor vehicle;
  2. b) The driving was culpable; and
  3. c) The culpable driving caused the death of another person.

The prosecution must prove beyond a reasonable doubt that both these elements are present in order for a conviction to be secured.

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Driving a Motor Vehicle

For the first element to be met, the jury must be satisfied that:

  • The accused was driving; and
  • The vehicle the accused was driving was a motor vehicle.

“Driving”

  1. “Drive” is an ordinary English word. There is no exhaustive legal definition of when a person “drives” a motor vehicle (Tink v Francis [1983] 2 VR 17).
  2. However, before a person can be considered to be driving, he or she must at least be in a position to control the movement and direction of the vehicle (Tink v Francis [1983] 2 VR 17).
  3. To be “driving”, a person must also, generally, have control over the propulsion of the vehicle (Tink v Francis [1983] 2 VR 17; Davies v Waldron [1989] VR 449).

In most cases it will be clear whether or not the accused was “driving”.

Culpable Driving

  1. The accused’s driving must have been “culpable”. This term is defined to mean driving:
    • Recklessly (s318(2)(a));
    • Negligently (s318(2)(b));
    • Whilst so affected by alcohol as to be incapable of having proper control of the motor vehicle (s318(2)(c)); or
    • Whilst so affected by drugs as to be incapable of having proper control of the motor vehicle (s318(2)(d)).
  2. The presentment must specify which of these bases of culpability is alleged against the accused (Crimes Act 1958 s318(3)). The presentment may specify more than one basis of culpability (R v Horvath [1972] VR 533).
  3. These bases of culpability do not create separate offences. While the conduct of the accused may satisfy more than one category, a person who causes the death of another by driving culpably commits only one offence of culpable driving (R v Beach (1994) 75 A Crim R 447).
  4. Each of these forms of culpability is examined in turn below.

Recklessness

  1. A person drives “recklessly” for the purpose of this offence if s/he “consciously and unjustifiably disregards a substantial risk that death of another person or the infliction of grievous bodily harm upon another person may result from his [or her] driving” (Crimes Act 1958 s318(2)(a)).
  2. This definition of “recklessness” requires the prosecution to prove beyond reasonable doubt that:
    • The accused was aware of a risk that death or grievous bodily harm may result from his or her driving;
    • That risk was substantial rather than remote;
    • The accused consciously disregarded that risk; and
    • The decision to disregard that risk was unjustifiable.
  3. If the accused disregarded the risk of harm in order to avoid greater harm, his or her actions may have been “justifiable”, and thus not reckless (R v Lucas [1973] VR 693).
  4. In the law of murder the phrase “really serious injury” has replaced the phrase “grievous bodily harm”. While the latter terminology is preserved in Crimes Act 1958 s318(2)(a), if used it will commonly be necessary to explain it by reference to the modern phrase. As a result, it should not be a misdirection to simply direct the jury by reference to the risk of causing “really serious injury”.

Negligence

  1. A person drives “negligently” for the purpose of this offence if s/he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case (Crimes Act 1958 s318(2)(b)).
  2. Historically, deviating from the standard of care to a “gross” degree meant driving in a way that fell so short of the standard of care required, and held such a high risk of death or serious injury, that it merited criminal punishment (R v De’Zilwa (2002) 5 VR 408).
  3. However, in King v R (2012) 245 CLR 588, the High Court questioned whether it was appropriate to ask jurors to consider whether the driving “merits criminal punishment” as part of culpable driving directions (see King v R at [45], [49], [68], [69], [83]). The minority (Heydon and Bell JJ) stated that if a judge used this expression in culpable driving directions and omitted it from dangerous driving directions, then juries would erroneously think that dangerous driving is a minor offence. This may affect their assessment of whether the accused was guilty of culpable driving.
  4. Subsequently, in Bouch v R [2017] VSCA 86, the Court of Appeal expressly stated that directions for culpable driving by gross negligence should not ask jurors to consider whether an accused’s driving “merits criminal punishment”.
  5. The level of negligence required must be of a “high order”. It must involve a great falling short of the standard of care that a reasonable person would have exercised in the circumstances and involves a high risk of death or serious injury resulting from the relevant conduct (Bouch v R [2017] VSCA 86).
  6. As the negligence required must be of a high order and must involve a high risk of death or serious injury, negligence in the form of momentary inattention or a minor lapse of judgment, or negligence that might be the basis for a simple civil claim for monetary compensation, would generally not be enough to support a finding of gross negligence (Bouch v R [2017] VSCA 86).
  7. While the test for negligence for the purposes of culpable driving by gross negligence is expressed in different terms to the tests for negligence for the offences of manslaughter by criminal negligence (R v Franks [1999] 1 VR 518; R v Shields [1981] VR 717; R v De’Zilwa (2002) 5 VR 408) and negligently causing serious injury (R v Mitchell [2005] VSCA 304), this does not mean that the test for each offence is different in substance.
  8. It is not certain that the tests for these offences differ in terms of the degree of negligence required for the respective offences to be committed. Given this, where an accused is charged with culpable driving by gross negligence, along with one of these other offences, which expresses the test for negligence in different terms, a judge should seek submissions from counsel as to how to explain the tests to the jury.
  9. The test for negligence for the purposes of culpable driving by gross negligence is more serious than the degree of negligence that is required to found liability at civil law (R v Wright [1999] 3 VR 355).
  10. This is an objective test (R v Gane 17/12/1993 Vic CCA). The jury should use their own knowledge and experiences when determining whether the driving was grossly negligent (R v Stephenson [1976] VR 376).
  11. In making this determination, the jury must consider the driving in light of “all the circumstances of the case”. The conditions of the road, and the size and speed of the driver’s vehicle, may all be relevant to assessing whether the conduct of the accused was negligent (R v Rudebeck [1999] VSCA 155).
  12. While adherence to the speed limit (or disregard of that limit) will be relevant, it will not be determinative:
    • Gross negligence is not proven merely by establishing that the accused drove in excess of the speed limit (R v Dickinson [2007] VSCA 111);
    • The accused may have been grossly negligent even if s/he was driving under the speed limit (R v Rudebeck [1999] VSCA 155; R v Smith [2006] VSCA 92).
  13. The jury does not only need to consider the accused’s physical control of the vehicle when determining if the accused was driving negligently. They may also consider the question of whether the accused should have been driving at all in the circumstances. In making this determination, they can take into account factors such as the condition of the vehicle, the time of driving, lighting conditions, heating and ventilation of the vehicle (Jiminez v R (1992) 173 CLR 572).
  14. The accused may have been grossly negligent if s/he was so fatigued that s/he knew, or ought to have known, that there was an appreciable risk of falling asleep or losing control of the vehicle while driving (Crimes Act 1958 s318(2A)). See “Voluntariness” below for a detailed discussion of this issue.
  15. Evidence of intoxication may be relevant to the jury’s assessment of the accused’s negligence. The use of such evidence is not limited to a charge of culpable driving under s318(2)(c) (R v Wright [1999] 3 VR 355).
  16. The existence of an external threat may be taken into account in determining the extent of the accused’s negligence. An act which may be grossly negligent in the absence of such a threat may be considered to be reasonable (or only marginally negligent) if committed in order to avoid another danger (R v Lucas [1973] VR 693; R v Gane 17/12/1993 Vic CCA).
  17. Not every fatal collision that is attributable to negligent driving involves the degree of negligence required for culpable driving. The law does not require drivers to act with perfect hindsight, or assume that for every accident there must be a remedy (R v Smith [2006] VSCA 92).
  18. An error of judgment in a situation of sudden crisis, or a failure to successfully take evasive action, does not constitute gross negligence (R v Mitchell [2005] VSCA 304; R v Jiminez (1992) 173 CLR 572).
  19. The requirement that the accused “unjustifiably” failed to observe the relevant standard of care does not create a separate step in the reasoning process. The presence or lack of justification for the accused’s acts will simply be one factor to take into account in determining if s/he had acted with gross negligence in the circumstances (R v Shields [1981] VR 717; R v Lucas [1973] VR 693).
  20. The defence of honest and reasonable mistake of fact is not relevant to this form of culpable driving. The jury should not be directed on this matter, as it is likely to result in confusion (R v Franks [1999] 1 VR 518).

Accused’s Mental State is of Limited Relevance

  1. The test for “gross negligence” is an objective one, to be determined by comparing the accused’s actions with the standard of care expected of the reasonable person. The accused’s state of mind (whether established by admissions or inference from post-offence conduct) will therefore only be relevant insofar as it provides evidence concerning the circumstances of the offence. It cannot establish that the accused knew s/he had deviated from the standard of care to the requisite extent, as that is a jury issue (see R v Dickinson [2007] VSCA 111).
  2. Evidence that the accused was aware that s/he was taking a risk by driving in the circumstances, but chose to disregard that risk (i.e. s/he acted “recklessly”), may be of assistance in proving that the accused acted negligently. However, such behaviour is not a requirement of culpable driving by gross negligence (R v Horvath [1972] VR 533).

Source: https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#4519.htm

Penalties:

If found guilty of culpable driving causing death, a person faces a maximum penalty of 20 years imprisonment and/or a fine of 2,400 penalty units. The standard sentence for this offense is 8 years imprisonment. However, the actual sentence will depend on the specific circumstances of the case, including the severity of the driving conduct, the offender’s prior criminal history, and any mitigating factors.

Defences:

There are a number of defenses available to a charge of culpable driving causing death. These include, but are not limited to:

  • Honest and reasonable mistake: if the defendant believed that they were driving safely and had no reason to believe otherwise;
  • Sudden or unexpected emergency: if the defendant’s driving was caused by an event beyond their control; and
  • Medical condition: if the defendant’s driving was caused by a medical condition that they were not aware of or could not control.

What to do if you are charged:

If you are charged with culpable driving causing death, it is important to seek legal advice as soon as possible. An experienced criminal lawyer can advise you of your rights and represent you in court. They can also help you to understand the charges against you and explore any available defences.

Alternative Offence: Dangerous Driving Causing Death

Crimes Act 1958 s422A(1) provides that the jury may find the accused guilty of dangerous driving causing death (Crimes Act s319(1)), if they are not satisfied that he or she is guilty of culpable driving causing death. See Dangerous Driving Causing Death or Serious Injury for information about this alternative offence.

On 30 May 2016, the Court of Appeal accepted that sentencing practices for dangerous driving causing death were manifestly inadequate and should increase (Stephens [2016] VSCA 121).

Important information links

Sentencing Snapshot for Culpable driving causing death produced by the Sentencing Advisory Council. https://www.sentencingcouncil.vic.gov.au/snapshots/275-culpable-driving-causing-death

Sentences from cases where culpable driving causing death was the principal offence, decided from 2006 to the present, organised by individual culpable driving sentence. Court of Appeal sentence overview.

https://resources.judicialcollege.vic.edu.au/article/679526

Additional resources:

Bail Application for Culpable Driving Causing Death

Case

Bail Application for Culpable Driving Causing Death

Bail Circumstances

A person may no longer be in a position where the presumption is that they are entitled to be released on bail when they are charged with an offence. Being granted bail can be a very complicated process. It is very important that you or your loved ones seek proper legal representation if they want to be released on bail.

Maximum Sentencing

Level 3 imprisonment (20 years maximum) or a level 3 fine or both for the Culpable Driving Causing Death

‘Exceptional Circumstances’

You have been charged with either an offence under Schedule 1 of the Bail Act, or an offence under Schedule 2 of the Bail Act in circumstances where:

  • You have a terrorism record
  • The Court considers there is a risk you will commit a “terrorism or foreign incursion” offence
  • You were on bail, summons, or at large for a Schedule 1 or Schedule 2 offence
  • You were undergoing a Community Corrections Order, on parole, or otherwise serving a sentence for a Schedule 1 or Schedule 2 offence
  • The offence is an offence of conspiracy to commit, incitement to commit or attempting to commit an offence in the above circumstances

The Bail Act does not define “exceptional circumstances” but case law in Victoria has held that, in order to be exceptional, the circumstances relied upon must be such as to take the case out of the normal so as to justify being granted bail. A combination of factors can be relied upon to show exceptional circumstances.

Bail Conditions

When granted bail, you may only need to make a formal promise (an undertaking) to appear in court as instructed. However, in some cases, you may be required to follow specific conditions to ensure your return for future court appearances. These conditions may include:

  1. Residence: You may be required to live at a fixed address and provide proof of residency to the court.
  2. Restricted Locations: You may be prohibited from visiting specific locations, such as potential witness residences or crime scenes.
  3. Limited Contact: You may be barred from contacting certain individuals, including potential co-defendants or witnesses.
  4. Regular Reporting: You may be required to report to a police station at designated intervals.
  5. Passport Surrender: You may need to surrender your passport and refrain from approaching any international departure points (e.g., airports).
  6. Surety: In some cases, the court may require a surety, which involves a financially responsible individual guaranteeing your adherence to bail conditions. This guarantee can be in the form of cash or property ownership. The surety must demonstrate their ownership of the pledged property and its value to the court.

By understanding and adhering to these bail conditions, you can demonstrate your willingness to cooperate with the judicial process and increase your chances of maintaining your pre-trial release.

How much would a lawyer in Victoria charge for a bail application for a person who has been charged with culpable driving off a motor vehicle causing death

The cost of a lawyer in Victoria to handle a bail application for a person charged with culpable driving causing death can vary widely depending on several factors, including:

  1. Lawyer’s experience and expertise: More experienced and specialized lawyers in criminal law, traffic law, and bail applications will generally charge higher fees than less experienced lawyers.
  2. Complexity of the case: Complex cases involving multiple charges, significant evidence, or prior offenses will likely require more time and effort from the lawyer, leading to higher fees.
  3. Location: Lawyers in metropolitan areas like Melbourne typically charge higher fees than those in regional areas.
  4. Reputation of the law firm: Renowned law firms with a strong reputation for successful bail applications may charge more than smaller firms.

Here’s a general estimate of the cost you can expect:

  • Initial consultation: $200 – $500
  • Preparation and filing of bail application: $2,000 – $5,000
  • Representation at the bail hearing: $1,500 – $3,000 per hour or per day (depending on the lawyer’s experience and the complexity of the case)

Additional costs:

  • Travel expenses
  • Expert witness fees
  • Court fees

Total cost:

The total cost of a bail application can range from $2,000 to $15,000 or more, depending on the abovementioned factors.

It’s important to note that these are just estimates, and the actual cost can vary significantly. Discussing your specific case with a lawyer is best to get an accurate quote.

Conclusion:

Culpable driving causing death is a serious offense with severe consequences. If you are facing charges under Section 318 of the Crimes Act 1958, it is important to remember that you are not alone. With the right legal assistance, you can navigate the legal process and protect your rights.

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