Short answer problem one:
Steve experiences occasional sudden unconsciousness as a result of a work place incident several years ago; resulting in a serious head injury. Over the last 4 years, he has unexpectedly lost consciousness on 5 occasions. On each occasion, he was at home and the loss of consciousness lasted between 30 seconds and one minute. On 26th September, 2011, he was driving his car when he lost consciousness for the 6th time while stationary at an intersection. His car drifted across the intersection and hit a pedestrian who was lawfully crossing to the other side. Steve has been charged with culpable driving causing death under s. 318 Crimes Act 1958 (Vic). Discuss Steve’s criminal liability including any relevant defences.
Introduction: Culpable driving
The statutory charge of ‘Culpable driving causing death’ pursuant to the Crimes Act 1958 (Vic)(“the Act”)’1 is a very serious offence, it is categorised as an indictable offence; if found guilty Steve may face a maximum 20 year term of imprisonment or a level three fine, or alternatively; both.2 Pursuant to ss 318(2)(a)–(d) of the Act (“Sections A-D”); to be found guilty and subsequently convicted the jury must find that; beyond reasonable doubt (“BRD”) the death of the pedestrian was the result of Steve driving in a manner considered to be:3
b) Negligent or; 5
c) Due to Steve being under the influence of drugs and/or alcohol to the extent of being incapable of having proper control of the vehicle.6
It is also worth noting that as the charge suggests in order for Steve to be found liable for Culpable driving causing death, pursuant to either form or manner provided for in Sections A-D the driving must have actually resulted in the death of the pedestrian.7
There are a number of avenues in which Steve can seek to avoid liability, these defences are:
Lack of recklessness;
Lack of negligence or lack of gross negligence; or
The success of these defences; like in all criminal cases turns to the facts of the case and the evidence provided.
Important points relating to the facts of the case
The facts provide that Steve has a serious condition that has rendered him unconscious on numerous occasions. There are no inferences made that suggest that Steve was speeding, precluded from driving or was driving whilst under the influence of drugs and/or alcohol.
It is important to note that the facts of the case do not state that the pedestrian actually died, nevertheless for the purpose of this discussion an inference will be made that the pedestrian died as it is the most likely probability considering the charge. There are a number of issues that must be considered before determining whether or not Steve is criminally liable for culpable driving causing death.
Reckless culpable driving
Firstly, one must determine what form of culpable driving Steve likely to be charged with. In R v McGrath,8 while referring to the wording provided in s 318(2)(a) of the Act (“Section A”) Callaway JA noted that ‘the worst class would almost certainly involve the first kind of culpability described in s 318(2)(a), namely a conscious and unjustifiable disregard of a substantial risk of causing death.’ 9 Justice Callaway is referring to intentional/voluntary nature of the apparent disregard of the substantial risk of causing death, he also correctly noted that ‘the state of mind described in s 318(2)(a) is the same as for reckless murder’10
Pursuant to the High Court decision of R v Crabbe,11 recklessness is to be substantiated subjectively test whereby it is necessary to prove BRD that the accused engaged in a manner or performed an act with the subjective knowledge that the consequences would probably result in the death or grievous bodily harm (“GBH”) to another person, but voluntarily disregarded this probable risk and continued to act. The High Court went further