7.2.8.2 - Charge: Culpable Driving Causing Death: One Basis of Culpability[1]
[This charge should be used if:
· The accused is charged with culpable driving causing death; and
· Only one basis of culpability is alleged.
If multiple bases of culpability are alleged, use Charge: Culpable Driving Causing Death: Multiple Bases of Culpability.]
The elements
I must now direct you about the crime of culpable driving causing death. To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt:
One - the accused was driving a motor vehicle.
Two - the accused’s driving was culpable.
Three - the culpable driving caused the victim’s death.
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.[2]
[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.
[If it is contended that the accused’s acts did not constitute “driving”, add the following shaded section.]
In this case the prosecution submitted that NOA was “driving” the [describe vehicle] when [describe relevant incident]. The defence denies this, alleging that what NOA was doing was not “driving”.
“Driving” is an ordinary English word. It does not have a technical legal definition. It is for you to determine, using your common sense and experience, whether what NOA was doing was “driving”.
While there is no legal definition of “driving”, before a person can be considered to be driving, s/he must at least be in a position to control the movement and direction of the vehicle. S/he should also, generally, have control over its propulsion. For this reason, conduct such as steering a towed or disabled vehicle will generally not be considered “driving”.
In deciding whether this element has been met, you should therefore consider the degree of control which NOA had over the vehicle. You should look at factors such as whether s/he could control the vehicle’s acceleration and steering.
In this case, the prosecution submitted that NOA’s acts were driving, because [insert prosecution evidence and/or arguments]. The defence denied this, arguing that [insert defence evidence and/or arguments].
It is only if you are satisfied, beyond reasonable doubt, that what NOA was doing was “driving”, that this first element will be met.
Culpable Driving
The second element that the prosecution must prove is that the accused’s driving was culpable.
The law defines “culpable” in a number of different ways. In this case, it is alleged that NOA’s drove “culpably” because s/he drove [recklessly / with gross negligence / whilst so affected by alcohol/drugs as to be incapable of having proper control of the vehicle].
Recklessness
[If it is alleged that the accused was reckless, add the following shaded section.]
The law says that a person drives “recklessly” if s/he consciously and unjustifiably disregards a substantial risk that his/her driving may cause another person to die or suffer really serious injury.
According to this definition, each of the following three matters must be proven beyond reasonable doubt for a person’s driving to be considered “reckless”:
First, the prosecution must prove that the accused was aware of a risk that death or really serious injury may result from his/her driving. When I say “really serious injury”, I am not using a technical legal phrase. These are ordinary English words, and it is for you to determine what this phrase means to you as jurors.
The prosecution must prove that NOA himself/herself knew of the risk of death or really serious injury. It is not enough that you, or a reasonable person, would have recognised those risks in the circumstances.
Secondly, the prosecution must prove that the risk of death or really serious injury was “substantial”. It is not sufficient for NOA to have known that there was some risk that death or really serious injury may be caused by his/her actions. The accused must have disregarded a substantial risk.
Thirdly, the prosecution must prove that the accused “consciously and unjustifiably” disregarded that risk. That is, knowing there was a substantial risk that driving in the circumstances would result in death or really serious injury, the accused consciously decided – without justification – to drive anyway.
[If voluntariness is in issue, add the following darker shaded section.]
In determining whether the accused’s actions were reckless, you may only take into account his/her voluntary actions – actions which were committed consciously and deliberately. This is because the law says that a person cannot be held criminally responsible for actions which s/he committed involuntarily.[3]
In this case, the prosecution argued that each of these aspects of “recklessness” have been met. [Insert prosecution arguments and/or evidence]. The defence denied this, contending [insert defence arguments and/or evidence].
It is only if you are satisfied, beyond reasonable doubt, that NOA was aware of a substantial risk that death or really serious injury may result from his/her driving, and s/he consciously and unjustifiably disregarded that risk, that this second element will be met.
Gross Negligence
[If it is alleged that the accused was grossly negligent, add the following shaded section.]
A person drives with "gross negligence" if his/her driving fell so far short of the standard of care a reasonable person would have exercised, and involved such a high risk of death or serious injury resulting from his/her conduct that it constitutes gross negligence.[4]
This requires you to compare NOA’s conduct with the “standard of care” that a reasonable person would have exercised in the circumstances. Precisely what that standard would have been is for you to decide, taking into account all of the circumstances in which NOA drove, such as [describe relevant factors, such as visibility, lighting, other cars and road markings].
This is an objective test. That means that the prosecution does not need to establish that NOA intended to cause death or really serious injury or that s/he realised that his/her conduct was negligent. What matters is what a reasonable person in his/her situation would have known and done.
For this element to be met, you must find that the reasonable person in the accused’s situation would have realised that his/her driving created a high risk of death or really serious injury.
In making your determination, you should consider the reasonable person to be the same age as the accused, to have any specialised knowledge and experience the accused had, and to be of ordinary strength of mind. In particular, [describe characteristics of the accused that are relevant to the reasonable person, including training and experience].
[If there are qualities of the accused that are not relevant, add the darker shaded section below]
However, the reasonable person is not [describe any adverse traits of the accused that are irrelevant, such as intoxication, concussion or carelessness].
In considering this question, remember that people do not always drive perfectly. Even the best drivers occasionally lose attention for a moment, or make minor mistakes. The offence of culpable driving is not concerned with minor breaches of the expected standard of care, even if they result in a collision and someone gets hurt. While that might establish negligence in a civil case, it is not sufficient to establish guilt in a criminal case. For a person to be guilty of culpable driving, more is required – NOA’s driving must have been “grossly negligent”.
[If the driver’s speed is in issue, add the following darker 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 with gross negligence in the circumstances. Similarly, it is possible for the accused to have driven within the speed limit, but to have nevertheless driven with gross negligence.
[If voluntariness is in issue, add the following darker shaded section.]
In determining whether the accused’s actions were grossly negligent, 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.[5] Obviously, a person is not acting voluntarily when s/he is sleeping. You therefore cannot find that NOA was grossly negligent 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 in a grossly negligent fashion before falling asleep, when his/her actions were voluntary.
For example, you may find that it was grossly negligent for the accused to drive at all, or to continue to drive, given the likelihood that s/he would fall asleep. The law says that the accused will have been grossly negligent if:
· S/he drove when fatigued to such an extent that s/he knew, or ought to have known, that there was an appreciable risk of falling asleep or losing control of the vehicle; and
· By driving in such a condition, s/he fell far short of the standard of care expected of a reasonable person, and created a high risk of death or serious injury.
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 acting with gross negligence, this second element will be satisfied.
[Summarise relevant evidence and/or arguments.]
Alcohol and/or Drugs
[If it is alleged that the accused was affected by alcohol and/or drugs, add the following shaded section.]
The law says that a person drives “culpably” if s/he drives while affected by [alcohol / drugs] to such an extent that s/he is incapable of exercising proper control over the vehicle.
This is not a question of whether the person actually exercises proper control over the vehicle. It is about whether s/he is capable of exercising such control. For this second element to be met, the accused must have been unable to exercise proper control over the vehicle, because of the effects of [alcohol / drugs].
It is therefore not enough for you simply to determine that the accused had [drunk alcohol / taken drugs] before driving. You must find that the [alcohol / drugs] affected NOA’s capacity to drive to the necessary extent.
To determine whether this was the case, you must compare the capacity of the accused to control the vehicle with the capacity of a reasonably competent driver. If, as a result of the effects of [alcohol / drugs], the accused was unable to drive to the same standard, this second element will be satisfied.
[If evidence that the accused’s blood alcohol concentration exceeded the statutory limit is given, add the following darker shaded section.[6]]
In this case you have heard evidence that, when s/he was tested by police, the accused had a blood alcohol concentration of [insert blood alcohol concentration], which is above the [0.00 or 0.05] statutory limit for driving. If you find this to be proven, you may take it into account in assessing the extent to which s/he was influenced by alcohol.
However, this is just one factor to consider. You do not need to conclude that NOA was incapable of exercising proper control over the vehicle simply because his/her blood alcohol concentration exceeded the legal limit. A person may be over the limit and still be capable of exercising proper control.
Whether or not the accused was affected to the necessary extent is a question of fact for you to determine, taking into account all of the evidence.
[If evidence that the accused’s blood alcohol concentration was within the statutory limit is given, add the following darker shaded section.]
In this case you have heard evidence that, when s/he was tested by police, the accused had a blood alcohol concentration of [insert blood alcohol concentration], which is within the 0.05 statutory limit for driving. If you find this to be proven, you may take it into account in assessing the extent to which s/he was influenced by alcohol.