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7.2.6.1 - Charge: Dangerous Driving Causing Death or Serious Injury

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When to Use This Charge

This charge may be given when the accused is charged with the following offences:

  • Dangerous driving causing death on or after 19/03/2008;
  • Dangerous driving causing serious injury on or after 1/07/2013.
  • Dangerous driving causing death or serious injury between 13/10/2004 and 18/03/2008, where the conduct caused death.

For dangerous driving causing death or serious injury between 13/10/2004 and 18/03/2008, where the conduct caused serious injury, or dangerous driving causing serious injury between 19/03/2008 and 30/06/2013, use Charge: Dangerous Driving Causing Serious Injury (Pre-1/7/13).

The judge should adapt the charge to state the correct name of the offence and whether the prosecution allege that the accused’s dangerous driving caused death or serious injury.

The elements

I must now direct you about the crime of dangerous driving causing [death / serious injury]. To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt:

One - at the time of the offence, the accused was driving a motor vehicle.

Two - the accused was driving at a speed or in a manner that was dangerous to the public.

Three - the dangerous driving caused the victim to [die / be seriously injured].

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.

[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.

[Add directions about any other issues that have arisen in relation to the first element (e.g., that the accused was not driving a "motor vehicle"; that the accused’s acts did not constitute "driving"; that the accused’s acts were not voluntary). See Charge: Culpable Driving - One Basis of Culpability for an example of directions on what it means to "drive" a motor vehicle, as well as on the issue of voluntariness.]

Dangerous Driving

The second element the prosecution must prove is that the accused was driving at a speed or in a manner that was dangerous to the public. That is, his/her driving involved a serious breach of the proper management or control of a vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured.

In determining whether this was the case, remember that people do not always drive as they should. Even the best drivers occasionally lose attention for a moment, or make minor mistakes. For this element to be satisfied, the accused must have driven at a speed or in a manner that significantly increased the risk of serious injury or death, over and above the ordinary risks of the road. This could be because NOA’s driving increased the likelihood of a collision, or because it made it more likely that any injuries suffered in a collision would be serious.

The accused’s manner of driving includes all matters concerned with the management and control of the vehicle, such as the accused’s technical driving skill. As part of this, you will consider the condition of his/her vehicle.

In determining whether NOA’s driving was dangerous, you must consider all of the circumstances in which s/he was driving. In this case, that includes [describe relevant circumstances, such as time of day, weather, lighting, condition of the driver, road conditions, traffic and vehicle condition].

However, you must not assume that simply because there was a collision, NOA’s driving must have been dangerous. Sometimes accidents happen, for which no one will be criminally responsible.

[If the driver’s speed is in issue, add the following 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 dangerously in the circumstances. Similarly, it is possible for the accused to have driven within the speed limit, but to have nevertheless driven dangerously.

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

In determining whether the accused’s driving was dangerous, 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.[1] Obviously, a person is not acting voluntarily when s/he is sleeping. You therefore cannot find that NOA drove dangerously 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 dangerously before falling asleep, when his/her actions were voluntary.

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 creating a real risk of killing or seriously injuring others, this second element will be satisfied.

In this case, the prosecution alleged that NOA’s manner of driving was dangerous because [insert prosecution arguments and/or evidence, clearly identifying the facts alleged to have made it dangerous]. The defence denied that NOA’s driving was dangerous, arguing [insert defence arguments and/or evidence].

This second element will only be met if you are satisfied, beyond reasonable doubt, that his/her driving involved a serious breach of the proper management or control of a vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured.

Causation

The third element that the prosecution must prove is that NOA’s dangerous driving caused NOV to [die / be seriously injured]. That is, NOV must have [died/ suffered a serious injury] as a result of NOA driving at a speed or in a manner that was dangerous to the public.

For this to be the case, there must have been a relationship between the accused’s dangerous driving and the victim’s [death / injury]. It will not be sufficient if the collision simply happened to occur while NOA was driving dangerously, but was not due to his/her dangerous driving.

However, the accused’s dangerous driving does not need to have been the only cause of NOV’s [death / injury], or the direct or immediate cause. You may find that NOA’s dangerous driving caused NOV to die / be seriously injured] if it was a substantial or significant cause of that result.

[If it is alleged that NOV was seriously injured, add the following shaded section.]

This element requires NOA’s dangerous driving to have caused NOV to be seriously injured. It is not sufficient for NOV to have merely been injured.

The law defines the word injury to mean physical injury or harm to mental health, whether temporary or permanent. A serious injury is an injury which endangers life or is substantial and protracted.[2]

[If multiple injuries were inflicted, add the following darker shaded section]

In making your decision, you do not have to look at each of NOV’s injuries separately, and decide whether or not any one of them is a serious injury. A person may suffer a serious injury because of the cumulative effect of several injuries.

[If the physical injuries caused ongoing psychological harm, add the following darker shaded section]

An injury may be substantial and protracted because of the combined effect of the immediate physical injuries and prolonged psychological injuries.

[Add directions about any other issues that have arisen in relation to the third element (e.g., that the death was caused by an intervening act; that the death was not caused by a voluntary act). See Charge: Culpable Driving - One Basis of Culpability for an example of directions on intervening acts, as well as on the issue of voluntariness.]

You should approach this element 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 dangerous driving causing [death / serious injury], the prosecution must prove to you, beyond reasonable doubt, that when the offence was committed:

One – NOA was driving a motor vehicle; and

Two – NOA was driving at a speed or in a manner that was dangerous to the public; and

Three – NOA’s dangerous driving caused NOV to [die / suffer serious injury].

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of dangerous driving causing [death / serious injury].

Comparison with Culpable Driving

[Where dangerous driving causing death is left as an alternative to culpable driving, the judge should explain the differences between the two offences.

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 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.

[2] The judge should consider including an example of a serious injury, such as brain damage, or a stabbing which causes significant blood loss.

Last updated: 30 November 2015

See Also

7.2.6 - Dangerous Driving Causing Death or Serious Injury

7.2.6.2 - Charge: Dangerous Driving Causing Serious Injury (Pre-1/7/13)

7.2.6.3 - Checklist: Dangerous Driving Causing Death

7.2.6.4 - Checklist: Dangerous Driving Causing Serious Injury