At first glance, it may appear as though there are multiple offences in Victoria that all relate to the same crime: driving causing death. However, each offence is different and has a distinct set of elements that must be proven by the prosecution. Further, each offence carries a specific and different maximum penalty.
In Victoria, there is a hierarchy of three different offences that are typically relied upon in matters involving driving causing death. The specific charge that the police choose to lay will depend on the level of criminality of the driving:
1. Involuntary Manslaughter – Maximum penalty of 25 years imprisonment. Prosecutors must prove that though the driver did not intend to kill or cause grievous bodily harm, they caused the death of another person when they:
a. Consciously and voluntarily breached a duty of care; or
b. Intentionally committed an unlawful act whilst driving.
2. Culpable Driving – Maximum penalty of 20 years imprisonment. Prosecutors must prove that the driver:
a. Drove recklessly, negligently or under the influence of drugs or alcohol;
b. That conduct caused the death of another person.
3. Dangerous Driving Causing Death or Serious Injury – Maximum penalty of 10 years imprisonment. Prosecutors must prove that the driver:
a. Drove at a speed or in a manner that was dangerous to the public given the circumstances; and
b. That driving caused the death or serious injury of another person.
If you have been charged or are under investigation for manslaughter, culpable driving, Perilous driving or serious injury, please immediately contact a criminal lawyer who specialises in driving and traffic matters.
Please note that this article is not legal advice. It only presents general information.
Involuntary Manslaughter
The Offence and Penalty
Involuntary manslaughter is when a person unlawfully kills another person but did not intend to kill or cause serious injury to that person.
In Victoria, involuntary manslaughter is an offence in common law and is also known as negligent manslaughter. It is an indictable offence and carries a maximum penalty of 25 years imprisonment (s 5 Crimes Act 1958 (Vic)).
Elements of the Offence
An accused driver can only be found guilty of involuntary manslaughter if the prosecution can prove beyond a reasonable doubt that the victim’s death resulted from either:
- The criminal negligence of the driver; or
- An unlawful dangerous act that was intentionally committed by the driver.
If the prosecution wants to argue that the driver is criminally negligent for the death of the victim, they must prove that:
- The accused driver owed the victim a duty of care;
- The accused driver breached that duty by criminal negligence;
- The accused driver committed the act which breached the duty of care consciously and voluntarily; and
- The accused driver’s breach of the duty of care caused the victim’s death.
Whether or not the accused driver owed the victim a duty of care will depend on the circumstances of the case. A duty of care may arise due to the context of the situation, the relationship between the parties, a specific statute or any other number of considerations.
An act or omission that results in a breach of a duty of care might amount to criminal negligence if:
- It falls so far below the standard of care that a reasonable person would have exercised in the accused’s position; and
- It involved such a high risk of death or serious injury that it deserves criminal punishment.
Alternatively, if the prosecution wants to argue that the driver caused the death of the victim by an unlawful dangerous act, they must prove that:
- The accused driver intentionally committed an unlawful act;
- The unlawful act was dangerous (a reasonable person in the same position would consider that act created an appreciable risk of serious injury);
- The unlawful and dangerous act was a substantial and operating cause of the death of the victim.
If the prosecution fails to prove any of the above elements beyond a reasonable doubt (or a legal defence can be relied upon), the defendant driver cannot be held criminally liable for involuntary manslaughter.
Culpable or Dangerous Driving Causing Death
The Offences and Penalties
“Culpable driving” is when a driver causes the death of another person by driving recklessly, negligently or under the influence of drugs or alcohol. It is an indictable offence in Victoria and carries a maximum sentence of 20 years imprisonment (s 318 Crimes Act 1958 (Vic)).
“Reckless driving” is when a driver causes the death of another person by driving at a speed or in a manner that is dangerous to the public given the circumstances. In Victoria, this is a separate offence and acts as an alternative verdict to culpable driving. It carries a maximum sentence of 10 years imprisonment (s 319 Crimes Act 1958 (Vic)).
Elements of the Offences
An accused driver can only be found guilty of culpable driving if the prosecution can prove beyond a reasonable doubt that the accused was driving:
- Recklessly;
- Negligently; or
- Under the influence of drugs or alcohol.
“Reckless” driving is when a person knows that their driving poses a substantial risk of killing another person but they ignore the consequences and drive in that manner regardless. “Negligent” driving is when a person fails to take enough care whilst driving and thus falls short of their duty of care to other roads users.
Even if a person is under the legal blood limit, they can still be found guilty of culpable driving under the influence of drugs or alcohol. The prosecution is only required to prove that the driver was under the influence to such an extent that they couldn’t maintain proper control over the vehicle.
If an accused driver is found not guilty of culpable driving, they can still be found guilty of an alternative verdict: dangerous driving causing death. The court may deliver this alternative verdict in circumstances where the driver’s behaviour was not serious enough to warrant a conviction of culpable driving.
In dangerous driving matters, the court must assess all the circumstances when determining whether the accused was driving at a dangerous speed or in a dangerous manner. For example, if the driver had been driving within the speed limit but too fast for the road conditions, this might amount to dangerous driving rather than culpable driving.
Summary: Manslaughter vs Dangerous Driving Causing Death
Manslaughter carries a high degree of criminality and thus a higher penalty in comparison to culpable or dangerous driving offences. To make out a charge of manslaughter, prosecutors must meet high standards in proving that the driver:
- “Consciously and voluntarily” breached a duty of care to the victim; or
- “Intentionally” committed an unlawful act.
Comparatively, the elements of proof are less complex for the offences of culpable driving and dangerous driving causing death. In such matters, prosecutors do not necessarily have to prove the driver’s intention or duty of care at the time. Instead, they need only prove that the accused drove:
- Negligently, recklessly or under the influence of drugs or alcohol (in culpable driving matters); or
- At a speed or in a manner that was dangerous to the public given the circumstances (in dangerous driving matters).
For example, a driver causes the death of another road user whilst intentionally performing a burnout – this would likely amount to involuntary manslaughter because the driver has both breached their duty of care to other road users and intentionally committed an unlawful act.
Now imagine that that same driver was obeying the road rules and accidentally caused the death of another road user because his car span out of control in the rain – this may only amount to culpable or dangerous driving because the act wasn’t intentional nor was the duty of care breached consciously and voluntarily. Rather, it would appear that the driver was driving in a manner that was reckless, negligent or dangerous to the public given the circumstances.
Criminal Driving and Traffic Offence Lawyers
If you have been charged or are under investigation for a driving or traffic offence, please contact Sher Criminal Lawyers immediately. We are here to help you achieve the best possible outcome in your matter.
Our team of specialist driving offence lawyers is extensively experienced in criminal driving matters. We frequently advise and represent clients in all kinds of traffic offence cases before the Magistrates, County and Supreme Courts of Victoria.
We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.
