The offence of culpable driving causing death is created by Crimes Act 1958 s318(1).
The offence has the following three elements,  each of which the prosecution must prove beyond reasonable doubt:
The accused was driving a motor vehicle;
The driving was culpable; and
The culpable driving caused the death of another person.
These elements are addressed in turn below.
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.
"Drive" is an ordinary English word. There is no exhaustive legal definition of when a person "drives" a motor vehicle (Tink v Francis  2 VR 17).
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  2 VR 17).
To be "driving", a person must also, generally, have control over the propulsion of the vehicle (Tink v Francis  2 VR 17; Davies v Waldron  VR 449).
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).
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  2 VR 17 for a detailed analysis of this issue.
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  VR 263).
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).
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) 12 VR 277; Transport Accident Commission v Serbec (1993) 6 VAR 151; Elizabeth Valley Pty Ltd v Fordham (1970) 16 FLR 459).
The accused’s driving must have been "culpable". This term is defined to mean driving:
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)).
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  VR 533).
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).
Each of these forms of culpability is examined in turn below.
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)).
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.
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  VR 693).
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".
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)).
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).
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 , , , , ). 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.
Subsequently, in Bouch v R  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”.
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  VSCA 86).
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  VSCA 86).
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  1 VR 518; R v Shields  VR 717; R v De’Zilwa (2002) 5 VR 408) and negligently causing serious injury (R v Mitchell  VSCA 304), this does not mean that the test for each offence is different in substance.
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.
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  3 VR 355)
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  VR 376).
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  VSCA 155).
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  VSCA 111);
The accused may have been grossly negligent even if s/he was driving under the speed limit (R v Rudebeck  VSCA 155; R v Smith  VSCA 92).
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).
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.
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  3 VR 355).
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  VR 693; R v Gane 17/12/1993 Vic CCA).
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  VSCA 92).
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  VSCA 304; R v Jiminez (1992) 173 CLR 572).
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  VR 717; R v Lucas  VR 693).
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  1 VR 518).
Accused’s Mental State is of Limited Relevance
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  VSCA 111).
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  VR 533).
Charging the Jury about Gross Negligence
A trial judge, in directing a jury, should confine him or herself to the language of the statute. The judge should direct a jury in such terms. Thus, a jury should be directed that a person drives “negligently” for the purpose of the offence of culpable driving causing death if that person fails unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all of the circumstances (Bouch v R  VSCA 86).
As to the meaning of the word “gross”, juries should be told that “gross” is an ordinary English word that should be given its ordinary meaning (R v De’Zilwa (2002) 5 VR 408; Bouch v R  VSCA 86).
The jury may be invited to compare the standard required for gross negligence with the civil standard of negligence (which only requires that the accused fall short of the standard of care that would be taken by a reasonable person in the circumstances of the accused) (Bouch v R  VSCA 86; R v Lucas  VR 693; R v De’Zilwa (2002) 5 VR 408; R v Gane 17/12/1993 Vic CCA).
While attempts to further explain the meaning of “gross” are not forbidden, they may be unwise. Synonyms like “glaring”, “flagrant” or “monstrous” should be avoided (Bouch v R  VSCA 86).
Because “gross” is not a commonly used word in contemporary society, except in a vernacular and imprecise sense, juries often ask for an explanation of its meaning (Bouch v R  VSCA 86).
The required negligence must be of a high order, involving a great falling short of the standard of care that a reasonable person would have exercised in all the circumstances and involving a high risk that death or serious injury would follow from the relevant conduct. The kind of negligence that might comprise momentary inattention or a minor error of judgment, or which might be the basis for a simple civil claim for monetary compensation, would usually not be enough to support a finding of gross negligence (Bouch v R  VSCA 86).
The matters which might constitute negligence of the high order that is needed for conviction should be pointed out to the jury (Bouch v R  VSCA 86).
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).
When charging the jury, the circumstances alleged to have given rise to the negligence (e.g., speed, visibility, tiredness) should be clearly identified (R v Poduska  VSCA 147; R v Franks  1 VR 518; R v Leusenkamp  VSCA 193).
Intoxication and Drugs
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.
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) 16 VR 26).
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  VR 96).
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  VSCA 147).
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) 16 VR 26).
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).
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  VR 541).
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  VR 693).
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) 16 VR 26).
It is not necessary to show that the accused was "drunk" in the popular sense (R v Burnside  VR 96).
The Culpable Driving "Caused" the Death
The third element that the prosecution must prove is that the culpable driving of the accused caused the death of another person.
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.
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  VSCA 155).
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)).
When the accused is charged with driving recklessly or negligently, the 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) 16 VR 26; R v Heron  VSCA 76).
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  VR 96).
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) 16 VR 26).
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).
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).
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 (2005) 12 VR 249).
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  VSCA 111; R v Guthridge (2010) 27 VR 452).
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  VSCA 155).
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:
Causation was a live issue in the trial; or
An undirected jury might consider causation to be a live issue.
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).
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) 16 VR 26).
See Causation for further information about this issue.
Death of another Person
To be found guilty of this offence, the accused must have caused the death of another person.
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)  QB 581).
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  VLR 338).
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).
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 (2003) 7 VR 236; see also R v Le Broc (2000) 2 VR 43).
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  VSCA 101).
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).
In the case of culpable driving, the issue of voluntariness may arise if the collision occurred because the accused fell asleep.  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  VSCA 101).
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).
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  1 VR 518).
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
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.
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  VSCA 155; R v Franks  1 VR 518; Jiminez v R (1992) 173 CLR 572).
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  1 VR 518).
Agreement about Basis of Culpability
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) 16 VR 26. See also R v Clarke and Johnstone  VR 643).
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) 16 VR 26).
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 (R v Guthridge (2010) 27 VR 452;  VSCA 132).
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 principal offender. Such an approach avoids the artificiality of relying on an implied agreement or understanding, and will simplify jury directions (R v Guthridge (2010) 27 VR 452;  VSCA 132).
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 (R v Guthridge (2010) 27 VR 452;  VSCA 132).
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.
 In some cases the prosecution will also have to prove that the accused’s conduct was voluntary – see below.
 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  VSCA 101).