Prior to 2004, there were two main serious driving offences in Victoria:
"Culpable driving causing death", carrying a maximum penalty of 20 years imprisonment and a minimum licence disqualification period of two years (Crimes Act 1958 s318); and
"Dangerous driving", carrying a maximum penalty of two years imprisonment and a minimum licence disqualification period of six months (Road Safety Act 1986 s64).
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).
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).
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).
References to "dangerous driving" encompass the three offences of:
Dangerous driving causing death or serious injury (available for offences committed between 13 October 2004 and 18 March 2008);
Dangerous driving causing death (available for offences committed from 19 March 2008); and
Dangerous driving causing serious injury (available for offences committed from 19 March 2008).
When to Leave Dangerous Driving as an Alternative Verdict
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).
For offences committed from 19 March 2008 onwards:
"Dangerous driving causing death" is available as an alternative verdict to the offence of "culpable driving causing death"; and
"Dangerous driving causing serious injury" is available as an alternative verdict to the offence of "negligently causing serious injury" (Crimes Act 1958 s422A).
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).
See Alternative Verdicts for further information concerning the requirement to leave alternative offences to the jury.
Dangerous driving has the following three elements,  each of which the prosecution must prove beyond reasonable doubt:
The accused was driving a motor vehicle;
The accused drove dangerously; and
The dangerous driving caused the death or serious injury of another person.
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 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)).
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  VR 96).
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  VR 96).
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  VR 96).
Serious Breach of the Management or Control of the Vehicle
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).
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).
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  1 QB 412).
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  VSCA 111).
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).
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  VSCA 92).
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
The jury must consider the accused’s driving in the circumstances of the alleged offence. The driving may be dangerous because:
It was intrinsically dangerous in all circumstances; or
It was dangerous in the particular circumstances surrounding the driving (McBride v The Queen (1952) 87 CLR 115; King v The Queen (2012) 245 CLR 588).
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  VSCA 155).
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).
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.
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
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  VLR 689; Buckley v Bowes  VLR 530).
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  VSCA 155; R v De Montero (2009) 25 VR 694).
Ordinary Risks of the Road
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;  HCA 24).
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).
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  Tas SR 159; Wynwood v Williams (2000) 111 A Crim R 435).
Members of the public include passengers travelling with the accused (R v Burnside  VR 96).
The Dangerous Driving "Caused" Death or Serious Injury
The third element that the prosecution must prove is that the accused’s dangerous driving caused the death or serious injury of another person.
There are two aspects to this element:
The dangerous driving must have caused the victim to die or to suffer serious injury; and
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  VSCA 59; R v De Montero (2009) 25 VR 694).
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.
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).
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).
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).
Dangerous driving is an alternative offence to culpable driving causing death or negligently causing serious injury (Crimes Act 1958 s422A).
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.
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  1 NSWLR 658; McBride v The Queen (1966) 115 CLR 44; Jiminez v The Queen (1992) 173 CLR 572).
The judge should explain the following matters to the jury:
The offence of dangerous driving, though a serious offence, involves conduct that is less blameworthy than culpable driving;
While culpable driving may require proof of gross negligence, dangerous driving requires proof that the accused’s driving involves a serious breach of the proper management or control of the vehicle that created a real risk that members of the public will be killed or seriously injured (R v De Montero (2009) 25 VR 694; King v The Queen (2012) 245 CLR 588).
 In some cases the prosecution will also have to prove that the accused’s conduct was voluntary – see below.
 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  2 VR 17 continue to apply to the offence of dangerous driving.
 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).