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7.2.5.1 - Charge: Culpable Driving Causing Death: One Basis of Culpability

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[This charge should be used if:

If multiple bases of culpability are alleged, use Charge: Culpable Driving Causing Death: Multiple Bases of Culpability.]

The elements

I must now direct you about the crime of culpable driving causing death. To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt:

One - the accused was driving a motor vehicle.

Two - the accused’s driving was culpable.

Three - the culpable driving caused the victim’s death.

I will now explain each of these elements in more detail.

Driving

The first element that the prosecution must prove is that the accused was driving a motor vehicle. [1]

[If this element is not in issue, add the following shaded section.]

In this case it is not disputed that NOA was driving a motor vehicle when [describe relevant incident]. You should therefore have no difficulty finding this element proven.

[If it is alleged that someone else was driving at the relevant time, add the following shaded section.]

In this case, the prosecution submitted that it was NOA who was driving the [describe vehicle] when [describe relevant incident and outline relevant prosecution evidence and/or arguments]. The defence denied this, alleging that [insert relevant defence evidence and/or arguments].

It is for you to decide whether it was NOA who was driving at the relevant time. It is only if you are satisfied, beyond reasonable doubt, that s/he was, that this first element will be met.

[If it is contended that the accused’s acts did not constitute "driving", add the following shaded section.]

In this case the prosecution submitted that NOA was "driving" the [describe vehicle] when [describe relevant incident]. The defence denies this, alleging that what NOA was doing was not "driving".

"Driving" is an ordinary English word. It does not have a technical legal definition. It is for you to determine, using your common sense and experience, whether what NOA was doing was "driving".

While there is no legal definition of "driving", before a person can be considered to be driving, s/he must at least be in a position to control the movement and direction of the vehicle. S/he should also, generally, have control over its propulsion. For this reason, conduct such as steering a towed or disabled vehicle will generally not be considered "driving".

In deciding whether this element has been met, you should therefore consider the degree of control which NOA had over the vehicle. You should look at factors such as whether s/he could control the vehicle’s acceleration and steering.

In this case, the prosecution submitted that NOA’s acts were driving, because [insert prosecution evidence and/or arguments]. The defence denied this, arguing that [insert defence evidence and/or arguments].

It is only if you are satisfied, beyond reasonable doubt, that what NOA was doing was "driving", that this first element will be met.

Culpable Driving

The second element that the prosecution must prove is that the accused’s driving was culpable.

The law defines "culpable" in a number of different ways. In this case, it is alleged that NOA’s drove "culpably" because s/he drove [recklessly / with gross negligence / whilst so affected by alcohol/drugs as to be incapable of having proper control of the vehicle].

Recklessness

[If it is alleged that the accused was reckless, add the following shaded section.]

The law says that a person drives "recklessly" if s/he consciously and unjustifiably disregards a substantial risk that his/her driving may cause another person to die or suffer really serious injury.

According to this definition, each of the following three matters must be proven beyond reasonable doubt for a person’s driving to be considered "reckless":

First, the prosecution must prove that the accused was aware of a risk that death or really serious injury may result from his/her driving. When I say "really serious injury", I am not using a technical legal phrase. These are ordinary English words, and it is for you to determine what this phrase means to you as jurors.

The prosecution must prove that NOA himself/herself knew of the risk of death or really serious injury. It is not enough that you, or a reasonable person, would have recognised those risks in the circumstances.

Secondly, the prosecution must prove that the risk of death or really serious injury was “substantial”. It is not sufficient for NOA to have known that there was some risk that death or really serious injury may be caused by his/her actions. The accused must have disregarded a substantial risk.

Thirdly, the prosecution must prove that the accused "consciously and unjustifiably" disregarded that risk. That is, knowing there was a substantial risk that driving in the circumstances may result in death or really serious injury, the accused consciously decided – without justification – to drive anyway.

[If voluntariness is in issue, add the following darker shaded section.]

In determining whether the accused’s actions were reckless, you may only take into account his/her voluntary actions – actions which were committed consciously and deliberately. This is because the law says that a person cannot be held criminally responsible for actions which s/he committed involuntarily. [2]

In this case, the prosecution argued that each of these aspects of "recklessness" have been met. [Insert prosecution arguments and/or evidence]. The defence denied this, contending [insert defence arguments and/or evidence].

It is only if you are satisfied, beyond reasonable doubt, that NOA was aware of a substantial risk that death or really serious injury may result from his/her driving, and s/he consciously and unjustifiably disregarded that risk, that this second element will be met.

Gross Negligence

[If it is alleged that the accused was grossly negligent, add the following shaded section.]

A person drives with "gross negligence" if his/her driving falls greatly short of the standard of care a reasonable person would have exercised, and involved a high risk that death or serious injury would result. [3]

This requires you to compare NOA’s conduct with the "standard of care" that a reasonable person would have exercised in the circumstances. Precisely what that standard would have been is for you to decide, taking into account all of the circumstances in which NOA drove, such as [describe relevant factors, such as visibility, lighting, other cars and road markings].

This is an objective test. That means that the prosecution does not need to establish that NOA intended to cause death or serious injury or that s/he realised that his/her conduct was negligent. What matters is what a reasonable person in his/her situation would have known and done.

For this element to be met, you must find that the reasonable person in the accused’s situation would have realised that his/her driving created a high risk of death or serious injury.

In making your determination, you should consider the reasonable person to be the same age as the accused, to have any specialised knowledge and experience the accused had, and to be of ordinary strength of mind. In particular, [describe characteristics of the accused that are relevant to the reasonable person, including training and experience].

[If there are qualities of the accused that are not relevant, add the darker shaded section below.]

However, the reasonable person is not [describe any adverse traits of the accused that are irrelevant, such as intoxication, concussion or carelessness].

In considering this question, remember that people do not always act perfectly. Even the most careful person can occasionally lose attention for a moment, or make minor mistakes. This offence is not concerned with minor breaches of the expected standard of care, even if they result in someone being hurt. While that might establish negligence in a civil case, it is not sufficient to establish guilt in a criminal case. For a person to be guilty of negligently causing serious injury, more is required – NOA’s conduct must have involved a great falling short of the standard of care required and there must have been a high risk that death or serious injury would result. To emphasise the standard required, a substantial departure from the standard of care a reasonable person would exercise may not be enough. There must be a high degree of negligence, involving a great departure from the standard of care required, to constitute gross negligence.

[If the driver’s speed is in issue, add the following darker shaded section.]

While the speed at which a person drives will be relevant to your decision, it will not be conclusive. It is just one factor to take into account. This is because it is possible for the accused to have driven above the speed limit, but not to have driven with gross negligence in the circumstances. Similarly, it is possible for the accused to have driven within the speed limit, but to have nevertheless driven with gross negligence.

[If voluntariness is in issue, add the following darker shaded section.]

In determining whether the accused’s actions were grossly negligent, you may only take into account his/her voluntary actions. This is because the law says that a person cannot be held criminally responsible for actions which s/he committed involuntarily.

In this case, you have heard evidence that NOA fell asleep while driving, and that the collision occurred while s/he was sleeping.[4] Obviously, a person is not acting voluntarily when s/he is sleeping. You therefore cannot find that NOA was grossly negligent due to the way s/he drove whilst asleep.

However, that does not mean that you must acquit him/her if you find that s/he was asleep at the time of the collision. This second element will be satisfied if the prosecution can prove, beyond reasonable doubt, that the accused drove in a grossly negligent fashion before falling asleep, when his/her actions were voluntary.

For example, you may find that it was grossly negligent for the accused to drive at all, or to continue to drive, given the likelihood that s/he would fall asleep. The law says that the accused will have been grossly negligent if:

To determine if this was the case, you must focus on the accused’s driving prior to falling asleep. Consider factors such as any warning signs the accused may have had that s/he was likely to fall asleep. If you find that by driving, or continuing to drive, in such circumstances s/he was acting with gross negligence, this second element will be satisfied.

[Summarise relevant evidence and/or arguments.]

 

Alcohol and/or Drugs

[If it is alleged that the accused was affected by alcohol and/or drugs, add the following shaded section.]

The law says that a person drives "culpably" if s/he drives while affected by [alcohol / drugs] to such an extent that s/he is incapable of exercising proper control over the vehicle.

This is not a question of whether the person actually exercises proper control over the vehicle. It is about whether s/he is capable of exercising such control. For this second element to be met, the accused must have been unable to exercise proper control over the vehicle, because of the effects of [alcohol / drugs].

It is therefore not enough for you simply to determine that the accused had [drunk alcohol / taken drugs] before driving. You must find that the [alcohol / drugs] affected NOA’s capacity to drive to the necessary extent.

To determine whether this was the case, you must compare the capacity of the accused to control the vehicle with the capacity of a reasonably competent driver. If, as a result of the effects of [alcohol / drugs], the accused was unable to drive to the same standard, this second element will be satisfied.

[If evidence that the accused’s blood alcohol concentration exceeded the statutory limit is given, add the following darker shaded section.][5]

In this case you have heard evidence that, when s/he was tested by police, the accused had a blood alcohol concentration of [insert blood alcohol concentration], which is above the [0.00 or 0.05] statutory limit for driving. If you find this to be proven, you may take it into account in assessing the extent to which s/he was influenced by alcohol.

However, this is just one factor to consider. You do not need to conclude that NOA was incapable of exercising proper control over the vehicle simply because his/her blood alcohol concentration exceeded the legal limit. A person may be over the limit and still be capable of exercising proper control.

Whether or not the accused was affected to the necessary extent is a question of fact for you to determine, taking into account all of the evidence.

[If evidence that the accused’s blood alcohol concentration was within the statutory limit is given, add the following darker shaded section.]

In this case you have heard evidence that, when s/he was tested by police, the accused had a blood alcohol concentration of [insert blood alcohol concentration], which is within the 0.05 statutory limit for driving. If you find this to be proven, you may take it into account in assessing the extent to which s/he was influenced by alcohol.

However, this is just one factor to consider. You do not need to conclude that NOA must have been capable of exercising proper control over the vehicle simply because his/her blood alcohol concentration was within the legal limit. A person can be under the limit, and yet be greatly affected by alcohol.

Whether or not the accused was affected to the necessary extent is a question of fact for you to determine, taking into account all of the evidence.

It is not necessary for you to find that the accused was unable to control the vehicle at the precise moment when the collision occurred. This element will be satisfied if you find that the accused was incapable of exercising proper control at any point in the drive leading up to the collision.

[If voluntariness is in issue, add the following darker shaded section.]

In determining whether the accused drove while affected by [alcohol / drugs] to such an extent that s/he was incapable of exercising proper control over the vehicle, you may only take into account his/her voluntary actions – actions which were committed consciously and deliberately. This is because the law says that a person cannot be held criminally responsible for actions which s/he committed involuntarily. [6]

In this case, the prosecution alleged that NOA was so affected by [alcohol / drugs] that s/he was incapable of exercising proper control over the vehicle. [Insert prosecution arguments and/or evidence]. The defence denied that NOA was affected by [alcohol / drugs] to the necessary extent, arguing [insert defence arguments and/or evidence].

It is only if you are satisfied, beyond reasonable doubt, that NOA was so affected by [alcohol / drugs] as to be incapable of exercising proper control over the vehicle, that this second element will be met.

Causation

The third element that the prosecution must prove is that NOA’s culpable driving caused NOV’s death.

Recklessness

[If it is alleged that the accused was reckless, add the following shaded section.]

It must have been the act of culpable driving that caused the death, not simply the act of driving. In this case, that means that the prosecution must prove that it was NOA’s reckless driving that caused NOV to die. That is, his/her act of driving, despite knowing that there was a substantial risk of death or really serious injury, was the cause of death.

For this to be the case, you must find that NOV’s death was caused by the occurrence of the risk that you found the accused was aware of, but chose to disregard. [Insert relevant example from the evidence.] It will not be sufficient for the death to have been caused by a different risk which the accused did not know about.

The accused’s reckless driving does not need to have been the only cause of death, or the direct or immediate cause. You may find that his/her reckless driving caused the death if it was a substantial or significant cause of that result.

[If it is alleged that the death was caused by intervening acts, add the following darker shaded section.]

In making this determination, you need to decide whether it was the accused’s acts which caused the death, or whether those acts merely provided the setting for the later acts of [insert intervening acts], which were the true cause of death. If NOA’s acts only provided the setting, then s/he did not cause the death, and you must find him/her not guilty of culpable driving causing death.

You should approach this issue in a common sense manner, bearing in mind that your answer affects whether or not the accused is held criminally responsible for his/her actions.

In this case [insert competing arguments and evidence relating to causation].

Gross Negligence

[If it is alleged that the accused was grossly negligent, add the following shaded section.]

It must have been the act of culpable driving that caused the death, not simply the act of driving. In this case, that means that you must find that it was NOA’s gross negligence that caused NOV to die. That is, the death resulted from NOA having driven in a way that fell far short of the standard of care expected of a reasonable person in the circumstances, and which held a high risk of death or serious injury.

For this to be the case, there must have been a relationship between the accused’s negligence and the victim’s death. It will not be sufficient if the collision simply happened to occur while NOA was driving negligently, but was not due to that negligence.

However, the accused’s negligent driving does not need to have been the only cause of death, or the direct or immediate cause. You may find that his/her negligence caused the death if it was a substantial or significant cause of that result.

[If voluntariness is in issue, add the following darker shaded section.]

It must have been a voluntary act of the accused that caused the death. As I mentioned earlier, a person cannot be held responsible for acts s/he commits involuntarily.

This element will therefore not be satisfied if you decide that it was the acts of the accused whilst asleep that caused NOV’s death. [7] For this element to be met, you must find that an act NOA committed before falling asleep – such as continuing to drive despite knowing that there was a high risk that s/he would fall asleep – was a substantial or significant cause of the death.

This will only be the case if that act was committed sufficiently close in time to the collision to be regarded as the cause of any harm inflicted while s/he was asleep.

[If it is alleged that the death was caused by intervening acts, add the following darker shaded section.]

In making this determination, you need to decide whether it was the accused’s acts which caused the death, or whether those acts merely provided the setting for the later acts of [insert intervening acts], which were the true cause of death. If NOA’s acts only provided the setting, then s/he did not cause the death, and you must find him/her not guilty of culpable driving causing death.

You should approach this issue in a common sense manner, bearing in mind that your answer affects whether or not the accused is held criminally responsible for his/her actions.

In this case [insert competing arguments and evidence relating to causation].

 

Alcohol and/or Drugs

[If it is alleged that the accused was affected by alcohol and/or drugs, add the following shaded section.]

For this element to be met, you only need to be satisfied that it was the accused’s driving that caused the death. You do not need to find that the death was caused by the effects of the [alcohol / drugs] on NOA’s ability to control the vehicle.

The accused’s driving does not need to have been the only cause of death, or the direct or immediate cause. You may find that his/her driving caused the death if it was a substantial or significant cause of that result.

[If it is alleged that the death was caused by intervening acts, add the following darker shaded section.]

In making this determination, you need to decide whether it was the accused’s driving which caused the death, or whether it merely provided the setting for the later acts of [insert intervening acts], which were the true cause of death. If NOA’s driving only provided the setting, then s/he did not cause the death, and you must find him/her not guilty of culpable driving causing death.

You should approach this issue in a common sense manner, bearing in mind that your answer affects whether or not the accused is held criminally responsible for his/her actions.

In this case [insert competing arguments and evidence relating to causation].

 

Application of Law to Evidence

[If not previously done, apply the law to the relevant evidence here.]

Summary

To summarise, before you can find NOA guilty of culpable driving causing death, the prosecution must prove to you, beyond reasonable doubt:

One – That NOA was driving a motor vehicle; and

Two – That NOA’s driving was culpable – that is, s/he drove [recklessly / with gross negligence / whilst so affected by alcohol/drugs as to be incapable of having proper control of the vehicle]; and

Three – That NOA’s culpable driving caused NOV’s death.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of culpable driving causing death.

Dangerous Driving Causing Death

[In most cases it will be necessary to leave a dangerous driving offence as an alternative offence. [8] In such cases, a suitably modified version of the appropriate charge should be inserted here. [9]

When modifying the charge, the judge must carefully explain the differences between culpable and dangerous driving. [10] The content of the explanation will vary depending on the basis of culpability alleged in relation to the culpable driving offence. For example:

 

Notes

[1] This charge assumes that the vehicle driven by the accused was clearly a "motor vehicle". If this is in issue, the charge will need to be modified. See Culpable Driving Causing Death for guidance on the definition of a "motor vehicle".

[2] This section may need to be expanded, depending on the nature of the alleged involuntary action. See the section on falling asleep while driving under "gross negligence" below for an example.

[3] 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. See R v De’Zilwa (2002) 5 VR 408.

[4] This part of the charge has been drafted for use in cases where it is alleged that the accused fell asleep while driving. If it is alleged that the accused acted involuntarily for a different reason, it will need to be modified accordingly.

[5] If evidence is given of positive drug test results, this section could be adapted accordingly.

[6] This section may need to be expanded, depending on the nature of the alleged involuntary action. If it is alleged that the accused was so intoxicated that s/he was acting involuntarily, relevant parts of Charge: Intoxication and Voluntariness should be inserted.

[7]This part of the charge has been drafted for use in cases where it is alleged that the accused fell asleep while driving. If it is alleged that the accused acted involuntarily for a different reason, it will need to be modified accordingly.

[8] Crimes Act 1958 s422A. Where the offence was alleged to have been committed between 13 October 2004 and 18 March 2008, "dangerous driving causing death or serious injury" should be left as an alternative. Where the offence was alleged to have been committed on or after 19 March 2008, "dangerous driving causing death" should be left as an alternative. See Dangerous Driving Causing Death or Serious Injury for further information concerning the duty to leave dangerous driving as an alternative offence.

[9] See Charge: Dangerous Driving Causing Death or Serious Injury.

[10] See Dangerous Driving Causing Death or Serious Injury for information concerning the differences between the offences.

Last updated: 23 October 2019

See Also

7.2.5 - Culpable Driving Causing Death

7.2.5.2 - Charge: Culpable Driving Causing Death: Multiple Bases of Culpability

7.2.5.3 - Checklist: Culpable Driving by Recklessness

7.2.5.4 - Checklist: Culpable Driving by Gross Negligence

7.2.5.5 - Checklist: Culpable Driving by Influence of Alcohol

7.2.5.6 - Checklist: Culpable Driving by Influence of Drugs