7.2.8 - Culpable Driving Causing Death1
7.2.8.1 - Bench Notes
Overview
1.
The offence of culpable driving causing death is created by Crimes Act
1958 s318(1).
2.
The offence has the following three elements,2 each of which the
prosecution must prove beyond reasonable doubt:
a)
The accused was driving a motor vehicle;
b)
The driving was culpable; and
c)
The culpable driving caused the death of another person.
These elements are addressed in turn below.
Driving a Motor Vehicle
3.
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”
4.
“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).
5.
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).
6.
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).
1
This document was last updated on 13 May 2014.
In some cases the prosecution will also have to prove that the accused’s conduct
was voluntary – see below.
2
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7.
In most cases it will be clear whether or not the accused was “driving”.
However, issues may arise where:

The vehicle was not fully operational at the relevant time (e.g., the
engine, steering or brakes were not working);

The vehicle was not being propelled by its own motor force (e.g.,
the car was being towed or was coasting downhill); or

The vehicle was stationary at the relevant time (e.g., the vehicle
was stopped at traffic lights).
8.
In each of these cases the accused may or may not have been driving,
depending on the degree of control the accused had over the
propulsion, movement and direction of the vehicle. See Tink v Francis
[1983] 2 VR 17 for a detailed analysis of this issue.
9.
Whether or not the accused was “driving” a motor vehicle in such
circumstances will be a question of fact for the jury to determine, taking
into account all of the surrounding circumstances (Pullin v Insurance
Commissioner [1971] VR 263).
“Motor Vehicle”
10. A “motor vehicle” is a vehicle that is used, or intended to be used, on a
highway, and that is built to be propelled by a motor that forms part of
the vehicle but does not include:

A vehicle intended to be used on a railway or tramway; or

A motorised wheel-chair capable of a speed of not more than 10
kilometres per hour which is used solely for the conveyance of an
injured or disabled person; or

A vehicle that is not a motor vehicle by virtue of a declaration
(Road Safety Act 1986 s3; Crimes Act 1958 s2A).
11. This definition requires the vehicle to be one that is normally used on a
highway. It is not enough that the vehicle, at the time in question, was
in use on a highway (Smith v Transport Accident Commission [2005]
VSCA 251; Transport Accident Commission v Serbec (1993) 6 VAR 151;
Elizabeth Valley Pty Ltd v Fordham (1970) 16 FLR 459).
Culpable Driving
12. The accused’s driving must have been “culpable”. This term is defined
to mean driving:

Recklessly (s318(2)(a));
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
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)).
13. 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).
14. 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).
15. Each of these forms of culpability is examined in turn below.
Recklessness
16. 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)).
17. 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.
18. 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).
19. 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
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causing “really serious injury”.
Negligence
Warning! The following commentary reflects the law as it is currently
understood in Victoria. However, in King v R [2012] HCA 24, the High Court
questioned whether it is 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 uses this expression in culpable driving directions
and omits it from dangerous driving directions, then the jury will erroneously
think that dangerous driving is a minor offence. This may affect the jury’s
assessment of whether the accused is guilty of culpable driving. Trial judges
will need to consider how to manage this issue until there is any further
guidance on this issue.
20. 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 man [or woman] would have observed in all the
circumstances of the case” (Crimes Act 1958 s318(2)(b)).
21. Deviating from the standard of care to a “gross” degree means driving
in a way that falls so short of the standard of care required, and holds
such a high risk of death or serious injury, that it merits criminal
punishment (R v De’Zilwa (2002) 5 VR 408).
22. This is the same degree of negligence that is required 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 305). It is more
serious than the degree of negligence that is required to found liability
at civil law (R v Wright [1999] 3 VR 359).
23. 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).
24. 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).
25. 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]
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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).
26. 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).
27. 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.
28. 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).
29. 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).
30. 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).
31. 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).
32. 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).
33. The defence of honest and reasonable mistake of fact is not relevant to
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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
34. 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).
35. 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).
Charging the Jury About Gross Negligence
36. Prior to 2002 judges were prohibited from explaining the meaning of
“gross negligence” in any words other than those used in s318(2)(b). It
was held that to do more than emphasise that the departure from the
stated standard of care must be “gross” was only likely to obscure the
nature of the jury’s task (R v Horvath [1972] VR 533; R v Franks [1999]
1 VR 518).
37. For this reason, it was not considered desirable for judges to charge
juries about “gross negligence” in the same terms that they charge
them about that term in cases of manslaughter by criminal negligence
(R v Horvath [1972] VR 533).
38. However, in R v De’Zilwa (2002) 5 VR 408 it was held that “gross” is not
a word of ordinary usage which can be easily understood by the jury,
and that judges should explain to the jury that it means falling so short
of the standard of care required, and holding such a high risk of death
or serious injury, that it merits criminal punishment (see also R v Scott
[2003] VSCA 55; R v Scholl (No 1) [2009] VSC 198). Cases prior to
De’Zilwa should be read in light of this decision.
39. Although not necessary, it will not be a misdirection to direct the jury in
accordance with both the formulation from R v De’Zilwa and the words
of the statute (R v Dickinson [2007] VSCA 111).
40. The jury may be invited to compare the standard required for gross
negligence with the civil standard of negligence (which only requires
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that the accused fall short of the standard of care that would be taken
by a reasonable person in the circumstances of the accused) (R v Lucas
[1973] VR 693; R v De’Zilwa (2002) 5 VR 408; R v Gane 17/12/1993
Vic CCA).
41. Gross negligence may also be explained through the use of synonyms
such as glaring or fragrant. A court should not, however, require the
jury to conclude that the negligence was monstrous (R v Gane
17/12/1993 Vic CCA; R v Stephenson [1976] VR 376).
42. A “significant departure” from the standard of care required is not
sufficient. Judges should be careful that the language of their direction
does not deviate from the degree of negligence stipulated by the Act (R
v De’Zilwa (2002) 5 VR 408).
43. When charging the jury, the facts alleged to have given rise to the
negligence (e.g., speed, visibility, tiredness) should be clearly identified
(R v Poduska [2008] VSCA 147; R v Franks [1999] 1 VR 518; R v
Leusenkamp [2003] VSCA 193).
Intoxication and Drugs
44. The accused will have driven culpably if s/he drove whilst so affected by
alcohol (s318(2)(c)) or drugs (s318(2)(d)) as to be incapable of having
proper control of the motor vehicle.
45. While sections 318(2)(c) and (d) are independent, these two forms of
culpability are fundamentally similar. They require the prosecution to
prove that, at the time of driving:

The accused was under the influence of alcohol / drugs; and

The extent to which the accused was affected by alcohol / drugs
was so great as to render him/her incapable of exercising proper
control over the vehicle (R v Ciantar [2006] VSCA 263).
46. It is not necessary to show that the accused was incapable of exercising
proper control at the time of the accident. It is sufficient if, at any point
during the drive preceding the accident, the accused was incapable of
exercising proper control over the vehicle (R v Burnside [1962] VR 96).
47. When charging the jury, the judge should clearly identify the matters
relied upon by the prosecution to establish that the accused did not
have proper control of the vehicle (R v Poduska [2008] VSCA 147).
48. To determine whether the accused was incapable of exercising proper
control, the jury should compare the capacity of the accused to control
the vehicle against the capacity of a reasonably competent driver. The
specifics of the standard are a matter for the jury (R v Ciantar [2006]
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VSCA 263).
49. It is not sufficient to establish merely that the accused was affected by
drugs or alcohol. It is necessary to show that s/he was influenced to the
required extent (R v Hawkes (1931) 22 Cr App R 172).
50. Evidence of the percentage of alcohol in the accused’s blood may be
used by the jury in assessing the extent to which s/he was influenced by
alcohol (R v Cheer [1979] VR 541).
51. It will not, however, be sufficient simply to show that the accused had a
proscribed blood alcohol concentration. Such statutory standards cannot
establish the inability of the accused to properly control the vehicle
(see, e.g., R v Lucas [1973] VR 693).
52. Everybody’s driving capacity is detrimentally affected by alcohol. The
extent of this effect is a matter for the jury. They are not required to
assume that an experienced or expert driver is less affected by alcohol
than an inexperienced driver (R v Ciantar [2006] VSCA 263).
53. It is not necessary to show that the accused was “drunk” in the popular
sense (R v Burnside [1962] VR 96).
The Culpable Driving “Caused” the Death
54. The third element that the prosecution must prove is that the culpable
driving of the accused caused the death of another person.
55. There are two aspects to this element:

The culpable driving must have caused the victim’s death; and

The victim must have been a “person”.
Each of these issues is addressed in turn below.
Causation
56. For the accused’s culpable driving to have caused the victim’s death, it
must have “contributed significantly” to the death, or been a
“substantial and operating cause” of it (Royall v R (1991) 172 CLR 378;
R v Rudebeck [1999] VSCA 155).
57. Precisely which act of the accused must have caused the death differs
depending on whether the accused has been charged with driving
recklessly or negligently (ss318(2)(a) or (b)), or driving under the
influence of alcohol or drugs (ss318(2)(c) or (d)).
58. When the accused is charged with driving recklessly or negligently, the
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alleged reckless or negligent act must have been the substantial and
operating cause of the events leading to the death of the deceased (R v
Ciantar [2006] VSCA 263; R v Heron [2003] VSCA 76).
59. In the case of recklessness, this means that the risk that was realised
and disregarded by the accused must be the risk that ultimately
eventuated and caused the victim’s death. It is not sufficient if the
accused chose to accept one risk, but the death was caused by a
different unforeseen risk (R v Burnside [1962] VR 96).
60. By contrast, when the accused is charged with driving under the
influence of alcohol or drugs, the prosecution only needs to prove that
the victim’s death was caused by the driving of the accused. While the
accused must have been so influenced by drugs or alcohol as to be
incapable of having proper control of the vehicle (see above), it is not
necessary to show that his or her inability to control the vehicle caused
the death of the deceased (R v Feketa (1982) 10 A Crim R 287; R v
Ciantar [2006] VSCA 263).
61. This imposes what may be akin to absolute liability on people who drive
while under the influence of drugs or alcohol (R v Feketa (1982) 10 A
Crim R 287).
62. The relevant acts of the accused must have been such that an ordinary
person would hold them, as a matter of common sense, to be a cause of
the death. The mere fact that they contributed causally to the death, or
were a necessary cause of it, is not sufficient (Royall v R (1991) 172
CLR 378).
63. The accused’s acts do not need to be the sole cause of the death. A
person can be criminally liable for a death that has multiple causes,
even if he or she is not responsible for all of those causes (Royall v R
(1991) 172 CLR 378; R v Lee (2002) 5 VR 249).
64. So even if another driver’s mistakes contributed to the collision, the
accused’s culpable driving will have caused the death if the jury finds it
was a substantial and operating cause of the collision (R v Lee (2005)
12 VR 249; R v Dickinson [2007] VSCA 111; Guthridge v R [2010]
VSCA 132).
65. However, where there are other possible causes of the death that are
inconsistent with the death having been caused by the accused’s
culpable driving, these must be excluded beyond reasonable doubt (R v
Rudebeck [1999] VSCA 155).
66. In many cases it will be unnecessary for the judge to do more than
simply identify causation as an element of the offence. However, more
detailed directions should be given if:
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
Causation was a live issue in the trial; or

An undirected jury might consider causation to be a live issue.
67. Some cases in which causation will be a live issue include where:

There were multiple possible causes of the death;

The death was delayed;

There were intervening acts between the accused’s actions and the
victim’s death; or

The accused is alleged to have caused the death indirectly (Royall
v R (1991) 172 CLR 378).
68. If the accused is charged with multiple forms of culpability (e.g.,
culpable driving by gross negligence and/or intoxication) the judge must
clearly explain the differences in causation outlined above (R v Ciantar
[2006] VSCA 263).
69. See Causation: Bench Notes for further information about this issue.
Death of Another Person
70. To be found guilty of this offence, the accused must have caused the
death of another person.
71. An unborn child is not classified as a “person” for the purposes of this
offence (see, e.g., R v F (1996) 40 NSWLR 245; Attorney-General’s
Reference (No 3 of 1994) [1996] QB 581).
72. A child is treated as being “born” (and thus a “person”) when “he or she
is fully born in a living state”. This occurs when the child is “completely
delivered from the body of its mother and it has a separate and
independent existence in the sense that it does not derive its power of
living from its mother” (R v Hutty [1953] VLR 338).
73. It is not necessary that the victim be a person at the time of the
collision. If an unborn child is injured in utero, is born alive, but dies as
a result of injuries caused by the culpable driving, the culpable driving
will have caused the death of another person (R v F (1996) 40 NSWLR
245).
Voluntariness
74. In the ordinary run of cases the voluntary quality of the accused’s acts
will not be in question (Ryan v R (1967) 121 CLR 205). It will therefore
not be necessary to direct the jury about voluntariness (R v Chang
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[2003] VSCA 149; see also R v Le Broc (2000) 2 VR 43).
75. However, there is no presumption that any act of the accused is
voluntary. Where voluntariness is in issue, the jury must be directed
that the prosecution must prove, beyond reasonable doubt, that the act
of culpable driving was the voluntary or willed act of the accused
(Jiminez v R (1992) 173 CLR 572; R v Frazer [2001] VSCA 101).
76. For voluntariness to be put in issue, there will need to be evidence that
displaces the common experience that a person’s will ordinarily
accompanies his or her actions. While not a true evidentiary burden,
this evidence needs to be sufficient to at least raise a doubt that the
accused’s acts occurred independently of the exercise of his or her will
(R v Falconer (1990) 171 CLR 30).
77. In the case of culpable driving, the issue of voluntariness may arise if
the collision occurred because the accused fell asleep.3 The accused
cannot be held responsible for any actions which take place when s/he
is asleep, because such actions are not voluntary (Jiminez v R (1992)
173 CLR 572; R v Frazer [2001] VSCA 101).
78. This does not mean that the accused cannot be found guilty of culpable
driving if s/he was asleep at the time of the collision. If the jury find
that the act of driving or continuing to drive prior to falling asleep was
culpable (e.g., it was grossly negligent for the accused to drive given
how tired s/he was), and that the act of driving in those circumstances
caused the victim’s death, the accused may be found guilty (Jiminez v R
(1992) 173 CLR 572; Kroon v R (1990) 55 SASR 476).
79. To find the accused guilty in such circumstances, the period of
wakefulness must have been sufficiently contemporaneous to the
collision to be regarded as the cause of the harm inflicted while the
accused was asleep (Kroon v R (1990) 55 SASR 476; R v Franks [1999]
1 VR 518).
80. Legislation addresses this issue in relation to culpable driving by gross
negligence. Crimes Act 1958 s318(2A) states that a person will be
grossly negligent if:

S/he drove when fatigued to such an extent that s/he knew or
ought to have known that there was an appreciable risk of falling
asleep or losing control of the vehicle; and
A similar issue arises if the accused was unconscious or suffering from an epileptic
seizure at the time of the collision (Jiminez v R (1992) 173 CLR 572; R v Frazer
[2001] VSCA 101).
3
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
By driving the motor vehicle in such a condition, s/he failed
unjustifiably and to a gross degree to observe the standard of care
a reasonable person would have observed in the circumstances.
81. While there have not yet been any cases interpreting this provision, it
appears to reflect the position at common law. At common law it was
held that, when determining whether the accused was grossly negligent
in such circumstances, the jury must consider his or her conduct prior to
falling asleep. They must determine whether his or her decision to
continue driving created a risk of losing control that was so fraught with
danger to human life that it constituted a gross departure from the
standard of care that a reasonable driver would have exercised in such
circumstances (R v Rudebeck [1999] VSCA 155; R v Franks [1999] 1 VR
518; Jiminez v R (1992) 173 CLR 572).
82. When directing the jury about this issue, the judge must not suggest
that tiredness or fatigue is sufficient. These are words of wide meaning,
that do not necessarily entail an appreciable risk that the person would
fall asleep or lose control of the vehicle (R v Franks [1999] 1 VR 518).
Agreement about Basis of Culpability
83. Where the jury are asked to consider more than one basis of culpability,
they must agree on the mode of culpability before they can find the
accused guilty. It is not just the ultimate question of guilt or innocence
that the jury must agree upon, but the form of offence which has been
committed (e.g. culpable driving by recklessness) (R v Beach (1994) 75
A Crim R 447; R v Ciantar [2006] VSCA 263. See also R v Clarke and
Johnstone [1986] VR 643).
84. The jury will not, however, be required to identify the basis of their
verdict. They will only be required to give a single verdict. The Act
creates only one offence of culpable driving, and the different forms of
culpability are not alternative counts (R v Ciantar [2006] VSCA 263).
85. See Unanimous and Majority Verdicts: Bench Notes for further
information about this issue.
Complicity
86. Where the accused participates in a race on a public road in which
another participant in the race directly causes the death of the victim,
the jury may find that the parties were acting in concert or that the
accused aided and abetted the other participant (Guthridge v R [2010]
VSCA 132).
87. In such cases, it will generally be preferable for the prosecution to
present the accused on the basis that he or she aided or abetted the
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principal offender. Such an approach avoids the artificiality of relying on
an implied agreement or understanding, and will simplify jury directions
(Guthridge v R [2010] VSCA 132).
88. However, where there is cogent evidence of an agreement or
understanding between the parties, it will be appropriate for the
prosecution to rely upon concert (Guthridge v R [2010] VSCA 132).
89. See Aiding, Abetting, Counselling or Procuring: Bench Notes and Acting
in Concert: Bench Notes for further information concerning these types
of complicity.
Alternative Offence: Dangerous Driving Causing Death
90. 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 Bench Notes: Dangerous Driving Causing Death or Serious
Injury for information about this alternative offence.
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