King v The Queen [2012] HCA 24: Dangerous driving does not require negligence

The appellant (who had been convicted of culpable driving) unsuccessfully argued in King v The Queen [2012] HCA 24 that flawed jury directions had deprived him of the opportunity of conviction on a lesser charge, s 319 Crimes Act. Rejecting the argument 3-2, the High Court considered the nature of dangerous driving; its history, purpose, and relationship to other offences where use of a motor vehicle has created actual or potential danger to other road users. The plurality said dangerous driving might involve negligence, but doesn’t have to. It’s not appropriate to treat dangerousness as a patch between the gross negligence of s 318(2)(b) of the Crimes Act and carelessness under s 65 Road Safety Act. It’s not necessary to read into the legislation the requirement of proof of criminal negligence that isn’t there. The Victorian Court of Appeal erred in R v De Montero (2009) 25 VR 694 when it said dangerous driving does necessarily involve negligence.

An offence under s 319 of the Crimes Act requires proof of dangerous driving causing death or serious injury. The test for dangerous driving is the same for s 319 as it is for an offence under s 64 of the Road Safety Act, the consequences of the dangerous driving being the difference between the two: R v De Montero (2009) 25 VR 694, referring to the Law Reform Commission of Victoria, Death Caused by Dangerous Driving, Report No 45 (1992) at 31.

Many judgments over the years have purported to set out the appropriate test for dangerousness, some by reference to previous authority, others attempting to coin their own tests. Starke J said in the refusal of leave to appeal to the High Court in R v Coventry (1938) 59 CLR 633 [at 635] that:

“The offence is established if it be proved that the acts of the driver create a danger, real or potential, to the public. Advertence to the danger on the part of the driver is not essential; all that is essential is proof that the acts of the driver constitute danger, real or potential, to the public. But whether such danger exists depends upon all the circumstances of the case …”

Dangerousness is harder to apply consistently than, say, the test for careless driving. The act of being in a car driving along at a legal speed creates a danger to other road users that wouldn’t exist if the driver wasn’t there. Driving is an innately dangerous activity. Doing it creates risks that otherwise wouldn’t exist, as does airline travel, participating in sport, and eating in certain restaurants.

It would obviously be wrong for a driver to be found guilty of dangerous driving because their mere presence on a road creates a hypothetical danger. If that was possible, every driver would be guilty of the offence all the time. How real, or how much of an increase in potential danger, must an act or omission be to constitute an offence of dangerous driving?

It might seem appropriate to apply the traditional common law test for manslaughter of, ‘such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment’: Andrews v DPP [1937] UKHL 1. But if that were applied to dangerous driving there would be no significant difference between the offence of culpable driving and the more recent s 319 Crimes Act offence. The offence of culpable driving requires culpability of, ‘the same degree as that required to support a charge of manslaughter’: R v Shields [1981] VR 717 at 724.

The Victorian Court of Appeal determined what a jury should be told to distinguish culpable driving from dangerous driving causing death in R v De Montero [2009] VSCA 255. The Court there held that a jury should be told,

It must be made clear to the jury, in appropriate language, that before the jury can convict of dangerous driving, it must be satisfied:

1. That the accused was driving in a manner that involved a serious breach of the proper management or control of his vehicle on the roadway such as to merit criminal punishment. It must involve conduct more blameworthy than a mere lack of reasonable care that could render a driver liable to damages in civil law.

2. That the breach must be so serious as to be in reality, and not just speculatively, potentially dangerous to others who, as members of the public, may at the time be upon or in the vicinity of the roadway. (A momentary lack of attention would not be sufficient, of itself, to constitute such driving.)

3. That the manner of driving created a considerable risk of serious injury or death to members of the public.

4. That the risk so created significantly exceeded that which is ordinarily associated with being on or near a highway.(We have replaced the phrase ‘real and appreciable’ which appears in some cases with the word ‘considerable’ which we think will be more readily understood by the jury. The word ‘real’ adds nothing if the risk is considerable.)

5. That in determining whether the manner of driving was ‘dangerous’ the test is an objective one. Would a reasonable driver (We have used the ‘reasonable person’ rather than ‘ordinary person’ because it is employed in the case of culpable driving: R v De’Zilwa [2002] VSCA 158. But we see no difference of substance between the two concepts.) in the circumstances of the accused have realised that the manner of driving involved a breach of the kind discussed in paragraphs 1 and 2, and also gave rise to the risk identified in paragraphs 3 and 4.

Later [at 716],

[The jury] should be told that while dangerous driving necessarily involves criminal negligence, it need not, like culpable driving, be grossly negligent, but must involve a serious breach of the proper management or control of the vehicle on the roadway. Unlike culpable driving, it did not require proof of a higher risk of death or serious injury, but only a considerable risk thereof.

Before De Montero was handed down the trial of Trent King was conducted. His appeal to the Court of Appeal was discussed here in March last year, but that post doesn’t discuss the jury directions issue. The appellant was convicted at trial of culpable driving after his jury had been directed that dangerous driving did not require conduct deserving of criminal punishment, and it was implied that neglience wasn’t an element of the s 319 offence. The Court of Appeal held the direction was wrong, but that it hadn’t lead to a miscarriage of justice. The conviction was upheld and his sentenced reduced.

The plurality in the High Court found that the original direction was not wrong [French CJ, Keiffel and Crennan JJ, at 38]:

Having regard to the ordinary meaning of the word, its context in s 319 and the purpose of s 319, as explained in the Second Reading Speech, negligence is not a necessary element of dangerous driving causing death or serious injury. Negligence may and, in many if not most cases will, underlie dangerous driving. But a person may drive with care and skill and yet drive dangerously. It is not appropriate to treat dangerousness as covering an interval in the range of negligent driving which is of lesser degree than driving which is “grossly negligent” within the meaning of s 318(2)(b) of the Crimes Act. The offence created by s 319 nevertheless takes its place in a coherent hierarchy of offences relating to death or serious injury arising out of motor vehicle accidents. It is not necessary to that coherence that the terms of the section be embellished by reading into them a requirement for proof of some species of criminal negligence.

Heydon J disagreed, this time in general consensus with Bell J. Both dissenters would have quashed the conviction and remitted the matter for re-sentencing.

The decision in this case accords with the decision in R v Bannister [2009] EWCA Crim 1571 (blogged about here way-back-when), where the UK Court of Appeal dealt with a case where the driving was dangerous, but arguably not negligent.

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