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7.2.6 - Dangerous Driving Causing Death or Serious Injury

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Commencement Information

  1. Prior to 2004, there were two main serious driving offences in Victoria:
  2. In 2004, the offence of "dangerous driving causing death or serious injury" was created, to fill a perceived gap in the seriousness between these two offences (Second Reading Speech, Hansard, Legislative Assembly, Mr Hulls, 3 June 2004, 1798). This offence, which commenced operation on 13 October 2004, carried a maximum penalty of five years imprisonment and a minimum licence disqualification period of 18 months (Crimes Act 1958 s319).
  3. In 2008, the offence of "dangerous driving causing death or serious injury" was divided into separate offences of "dangerous driving causing death" and "dangerous driving causing serious injury". The new offences, which differ only in the degree of injury inflicted, carry a maximum penalty of 10 years’ and 5 years’ imprisonment respectively (Crimes (Child Homicide) Act 2008 s5).
  4. This change only applies to offences committed on or after 19 March 2008. For offences occurring between 13 October 2004 and 18 March 2008, the offence of dangerous driving causing death or serious injury will continue to apply (Crimes Act 1958 s610).
  5. References to "dangerous driving" encompass the three offences of:

    When to Leave Dangerous Driving as an Alternative Verdict

  6. For offences occurring between 13 October 2004 and 18 March 2008, "dangerous driving causing death or serious injury" is available as an alternative verdict to the offences of "culpable driving causing death" and "negligently causing serious injury" (Crimes Act 1958 s422A).
  7. For offences committed from 19 March 2008 onwards:
  8. The relevant dangerous driving offence should generally be left as an alternative in any trial involving a motor vehicle incident, where the driver is charged with culpable driving causing death or negligently causing serious injury (R v Saad (2005) 156 A Crim R 533; R v DD (2007) 19 VR 143; R v Kane (2001) 3 VR 542).
  9. See Alternative Verdicts for further information concerning the requirement to leave alternative offences to the jury.

    Elements

  10. Dangerous driving has the following three elements, [1] each of which the prosecution must prove beyond reasonable doubt:
    1. The accused was driving a motor vehicle;
    2. The accused drove dangerously; and
    3. The dangerous driving caused the death or serious injury of another person.

    Driving a Motor Vehicle

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

    "Driving"

  12. "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).
  13. 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).
  14. 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).
  15. In most cases it will be clear whether or not the accused was "driving". However, issues may arise where:
  16. 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.
  17. 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"

  18. 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:
  19. 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).

    Dangerous Driving

  20. The second element requires the accused to have driven "at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case" (Crimes Act 1958 s319(1)).
  21. Section 319 creates an offence which can be committed by either driving at a speed that is dangerous to the public or driving in a manner dangerous to the public (Hedberg v Woodhall (1913) 15 CLR 531; R v Coventry (1938) 59 CLR 633; R v Burnside [1962] VR 96).
  22. All matters concerned with the control and management of the vehicle are part of the accused’s "manner of driving". This includes speed, navigation and communication with other drivers (R v Coventry (1938) 59 CLR 633; R v Burnside [1962] VR 96).
  23. There is no need to prove a course of conduct. "Manner of driving" covers all of the acts and omissions of a driver, including casual or transitory acts. A single dangerous act is sufficient (R v Coventry (1938) 59 CLR 633; R v Burnside [1962] VR 96).

    Serious Breach of the Management or Control of the Vehicle

  24. The speed or manner in which the accused drove must have involved such a serious breach of the proper management or control of the vehicle (R v De Montero (2009) 25 VR 694; McBride v The Queen (1966) 115 CLR 44; King v The Queen (2012) 245 CLR 588).
  25. This test will only be satisfied if the speed or manner in which the accused drove posed a real, and not just speculative, danger to other members of the public who may have been in the vicinity (R v De Montero (2009) 25 VR 694; R v Guthridge (2010) 27 VR 452; McBride v The Queen (1966) 115 CLR 44; King v The Queen (2012) 245 CLR 588).
  26. It is not necessary to prove that the accused intended to drive dangerously, or was aware that his or her conduct was dangerous to the public. This test may be satisfied even if the accused was driving at his or her (incompetent) best (R v Coventry (1938) 59 CLR 633; R v Goodman NSWCCA 10/12/1991; R v Evans [1963] 1 QB 412).
  27. 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 (see below) (see, e.g., R v Dickinson [2007] VSCA 111).
  28. Any harm caused by the accused’s driving may be used as evidence of the seriousness of the breach (McBride v The Queen (1966) 115 CLR 44).
  29. However, the mere fact that a collision has occurred is not conclusive evidence of a serious breach. 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).
  30. A mere error of judgment in a situation of sudden crisis, or a failure to successfully take evasive action, will not constitute a sufficiently serious breach (R v Jiminez (1992) 173 CLR 572; R v Coventry (1938) 59 CLR 633).

    Circumstances of the Offence

  31. The jury must consider the accused’s driving in the circumstances of the alleged offence. The driving may be dangerous because:
  32. The conditions of the road, and the size and speed of the driver’s vehicle, may all be relevant to the jury’s determination (R v Rudebeck [1999] VSCA 155).
  33. In addition to considering the accused’s physical control of the vehicle, the jury may also consider the question of whether, in all the circumstances, the accused should have been driving at all. In making this determination, the jury can take into account factors such as the condition of the vehicle, the time of driving, lighting conditions, heating and the ventilation of the vehicle (Jiminez v R (1992) 173 CLR 572; Giorgianni v The Queen (1985) 156 CLR 473).
  34. The accused may have driven dangerously 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 (Jiminez v The Queen (1992) 173 CLR 572; R v Kroon (1990) 55 SASR 476). See "Voluntariness" in Culpable Driving Causing Death for a detailed discussion of this issue.
  35. Driving a motor vehicle in a seriously defective condition may constitute a serious breach of the proper management and control of the vehicle, even if the defect does not manifest itself until such time as the vehicle is out of the control of the driver (Jiminez v The Queen (1992) 173 CLR 572).1
  36. While adherence to the speed limit (or disregard of that limit) will be relevant to determining the seriousness of the breach, it will not be conclusive. There must be a connection between the speed alleged and the creation of danger (R v De Montero (2009) 25 VR 694; Black v Goldman [1919] VLR 689; Buckley v Bowes [1925] VLR 530).
  37. It therefore seems likely that an accused can be convicted of dangerous driving causing death or serious injury even if s/he was travelling under the speed limit (see, e.g., R v Rudebeck [1999] VSCA 155; R v De Montero (2009) 25 VR 694).

    Ordinary Risks of the Road

  38. The accused’s driving must have created risks that significantly exceeded the risks which are ordinarily associated with driving (which is an inherently risky activity). The accused’s manner of driving must have created a risk of harm which is not a fair or necessary risk of the road (R v De Montero (2009) 25 VR 694; R v Guthridge (2010) 27 VR 452; R v Duncan SASC 08/05/1953; Jiminez v The Queen (1992) 173 CLR 572; R v Mayne (1975) 11 SASR 583; King v The Queen (2012) 245 CLR 588; [2012] HCA 24).
  39. In assessing the extent of the risk, the jury must consider both the likelihood of a collision, and the seriousness of any likely injuries if a collision does occur (Pope v Hall (1982) 30 SASR 78).
  40. It is not necessary for the prosecution to identify a particular person who was endangered by the driving. The public includes actual or potential road users (R v Smith [1969] Tas SR 159; Wynwood v Williams (2000) 111 A Crim R 435).
  41. Members of the public include passengers travelling with the accused (R v Burnside [1962] VR 96).

    The Dangerous Driving "Caused" Death or Serious Injury

  42. The third element that the prosecution must prove is that the accused’s dangerous driving caused the death or serious injury of another person.
  43. There are two aspects to this element:

    Causation

  44. The test for causation is the same as that found in culpable driving. See Causation and Culpable Driving Causing Death for detailed information.

    Death or Serious Injury

  45. To be found guilty of this offence, the accused must have either caused a person to die, or to suffer serious injury (Crimes Act 1958 s319). This is the only difference (apart from penalty) between this offence and dangerous driving under s64 of the Road Safety Act (DPP v Oates [2007] VSCA 59; R v De Montero (2009) 25 VR 694).
  46. For information about causing death, see Intentional or Reckless Murder and Culpable Driving Causing Death For information about causing serious injury, see Intentionally Causing Serious Injury

    Voluntariness

  47. This issue of voluntariness in relation to dangerous driving is the same as for culpable driving causing death. See Culpable Driving Causing Death for information on this issue.

    Complicity

  48. 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).
  49. 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).
  50. 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).
  51. See Statutory Complicity, Joint Criminal Enterprise and Aiding, Abetting, Counselling or Procuring for information concerning these types of complicity.

    Dangerous, Culpable and Negligent Driving

  52. Dangerous driving is an alternative offence to culpable driving causing death or negligently causing serious injury (Crimes Act 1958 s422A).
  53. However, a majority of the High Court has held that dangerous driving is not a species of negligence (King v The Queen (2012) 245 CLR 588 (Bell J contra)). While Bell J has held that the difference between negligent culpable driving and dangerous driving is a difference of degree rather than kind, this was a dissenting view.
  54. When dangerous driving is left to the jury as an alternative offence, the judge must clearly direct the jury about the differences between the two offences (R v De Montero (2009) 25 VR 694; King v R (2011) 32 VR 233; R v Buttsworth [1983] 1 NSWLR 658; McBride v The Queen (1966) 115 CLR 44; Jiminez v The Queen (1992) 173 CLR 572).
  55. The judge should explain the following matters to the jury:

 

Notes

[1] In some cases the prosecution will also have to prove that the accused’s conduct was voluntary – see below.

[2] Road Safety Act 1986 s3AB states that a person who is steering a towed vehicle is taken to be driving for the purposes of that Act. However, as this expanded definition of driving is not incorporated into the Crimes Act 1958, the matters discussed in Tink v Francis [1983] 2 VR 17 continue to apply to the offence of dangerous driving.

[3] In such circumstances, the accused may be able to rely on the defence of honest and reasonable mistake of fact (Jiminez v The Queen (1992) 173 CLR 572).

Last updated: 25 July 2012

In This Section

7.2.6.1 - Charge: 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

See Also

7.2 - Homicide

7.2.1 - Intentional or Reckless Murder

7.2.2 - Manslaughter by Unlawful and Dangerous Act

7.2.3 - Negligent Manslaughter

7.2.4 - Defensive Homicide

7.2.5 - Culpable Driving Causing Death