King v The Queen

King v The Queen - [2012] HCA 24 - HCA 2012 case summary — Zoe

[6]

This appeal against two convictions for culpable driving causing death contrary to s 318(1) of the Crimes Act 1958 (Vic) ("the Crimes Act"), concerns the way in which alternative verdicts for the lesser offence of dangerous driving causing death, contrary to s 319(1) of the Crimes Act, were left to the trial jury. In the Court of Appeal of the Supreme Court of Victoria (Buchanan, Redlich and Mandie JJA), the appellant, Trent Nathan King, contended unsuccessfully that the trial judge (Douglas J) had misdirected the jury on the lesser offence. He complained that the trial judge had pitched the standard of dangerous driving, necessary for conviction of the lesser offence, at such an erroneously low level of culpability that the jury would have been less inclined to consider convicting him of that offence. Her Honour told the jury that dangerous driving was established by proof that the accused drove in a way that "significantly increased the risk of harming others." Her Honour's direction accorded with existing authority in Victoria. The subsequent decision of the Court of Appeal in R v De Montero[1] construed s 319 as imposing a higher level of culpability than set out in the trial judge's direction. It required driving that created "a considerable risk of serious injury or death to members of the public."[2] It also required conduct by the accused in his manner of driving which was such as to merit punishment by the criminal law. The decision in De Montero was applied by the Court of Appeal in this case. For reasons which are set out below, De Montero should not be followed.
The trial judge's direction was potentially misleading in one respect. Her Honour directed the jury that, in order to establish that Mr King had committed the offence of dangerous driving causing death, it was not necessary for the Crown to prove that the driving said to be dangerous was deserving of criminal punishment. By that direction, which was contrary to the guidelines later set down in De Montero, her Honour sought to exclude the criterion of criminal negligence from the jury's consideration of the offence under s 319. As is explained later in these reasons, her Honour's understanding of s 319 in that regard was correct. Insofar as the direction had the potential to mislead the jury, it did not constitute a miscarriage of justice. Such a conclusion is reinforced by the absence of any request for a redirection by defence counsel. The appeal should be dismissed.

[8]

On 13 July 2005 at about 1 am Mr King was driving a BMW car north along Evans Road, Cranbourne, approaching the intersection of Evans Road and Thompsons Road, which runs east/west. He was driving two friends to Oakleigh. He drove past a "Give Way" sign at the intersection and collided with a Mitsubishi tray truck entering the intersection on his left from Thompsons Road[4]. The BMW ended up lying on its roof in bushes to one side of the road. Mr King's two passengers died in the collision.
There was evidence from the driver of the Mitsubishi truck and his passengers that the intersection was not well lit. On the other hand, there was evidence of police witnesses that the lighting at the intersection was adequate. The road was in a semi-rural area so that it did not have the same kind of lighting as would be found in a built-up area. There were two yellow signs with a black cross on the left and right hand sides of Evans Road which indicated to vehicles travelling north that they were approaching an intersection. There were also signs at the intersection itself which indicated that the northern extension of Evans Road beyond the intersection was closed for road works.
There was no evidence that Mr King had consumed alcohol or that he had been driving irresponsibly prior to the collision. There was, however, evidence of tetrahydrocannabinol in his blood at a level of 13ng/mL, which was characterised by expert witnesses as a "high reading" and which, according to their evidence, would have "significantly impaired" his driving skills at the relevant time. Mr King was travelling within the applicable speed limit, which was 80 kph. His pre-impact speed was estimated by an expert police witness, who examined the vehicles and the collision site, as 75 kph. The same witness described the intersection as having a crash history. He had attended the scene of a fatal accident there in March 2004. There was evidence of a bank of trees near the intersection that would have obscured the vision of a driver travelling north on Evans Road almost to the point at which the driver reached the intersection.
Mr King did not give evidence at the trial, nor did he call any witnesses in his defence.

[85]

The Crown's submissions should be accepted. The Court of Appeal in De Montero erred in treating dangerous driving as a species of the genus of criminal negligence. That error gave rise to the further error that a jury should be directed, in relation to dangerous driving causing death or serious injury, that it must involve negligence deserving of punishment by the criminal law. As discussed earlier in these reasons, the concept of "negligence deserving of punishment by the criminal law" had its origins in attempts by the common law to set a threshold for the level of criminal negligence necessary to establish manslaughter per infortunium. It was transposed to the offence of manslaughter under the Criminal Codes of Queensland and Western Australia and, by the decision of this Court in Callaghan, to the offence created by s 291A of the Criminal Code (WA).
Despite its pedigree, the further transposition of that form of direction to the offence of culpable driving causing death under s 318 of the Crimes Act and similar offences in other States and Territories of Australia is questionable. It assumes that the jury understands the concept of negligence sufficient to ground civil liability. In Buttsworth the common law principle that criminal negligence differs in degree from civil negligence mutated into the proposition that "[n]egligence in the criminal sense is … a different concept from negligence in civil law."[84] In any event, the direction has no role to play in relation to the offence created by s 319, which is concerned ultimately with the risk creating characteristics of the speed or manner of driving of the accused.
The Court of Appeal in De Montero considered that the level of risk necessary to support the offence of dangerous driving under s 319 existed if an ordinary or reasonable person in the situation of the driver would recognise the manner of driving as involving an appreciable risk of serious injury or death to other users of the road[85]. Dangerous driving was said to involve "a serious breach" of proper driving standards, which exceeded the everyday lack of care sufficient for a civil negligence claim, but which fell short of the gross negligence required for culpable driving[86]. The formulation of the requisite level of risk rested on the premise that negligence is an element of the offence under s 319. The risk of harm, on the approach taken by the Court of Appeal, was to be assessed according to whether and to what extent the driver had breached a duty of care. That approach was erroneous. It may be that in many if not most cases dangerous driving is a manifestation of negligence in the sense of carelessness. It may also be a manifestation of deliberate risk-taking behaviour. It may be that in some circumstances where particular attention is required to the road and to other road users, momentary inattention will result in a manner of driving that is dangerous within the meaning of the section. The assessment of whether the manner of driving was dangerous depends on whether it gave rise to the degree of risk set out by Barwick CJ in McBride and adopted by the plurality in Jiminez in relation to s 52A of the Crimes Act 1900 (NSW). That is the level of risk which should inform a trial judge's direction to a jury in respect of the offence under s 319.
It is a consequence of this conclusion that the increased penalties applicable to offences against s 319 in its present amended form apply to offences which may be committed by transgressing a lower standard of liability than that set out in De Montero. There is no doubt that s 319 is capable of encompassing a range of driving behaviours some of which, apart from their tragic consequences, may attract considerably less condemnation than others. The legislature has imposed maximum penalties which, in effect, authorise a range of dispositions capable of encompassing the variety of circumstances in which offences may be committed against s 319. That variety must be reflected in the sentences which are imposed. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen[87]:

[87]

For the above reasons, and subject to one qualification, the trial judge did not err in her direction to the jury relating to the alternative verdicts of guilty of offences against s 319. The qualification is that it was unnecessary and possibly confusing for her Honour to direct the jury that, in order to prove the commission of offences against s 319, the Crown did not have to satisfy them that the accused's driving was deserving of criminal punishment.
The common law criterion of criminal negligence as negligence deserving of punishment by the criminal law was instrumental in character. It was designed to impress upon the jury the seriousness of the degree of negligence necessary to support a verdict of guilty. At the same time, as Stephen pointed out, the gravity of the negligence in the particular case was left to the jury to determine "as a matter of degree". The application of that criterion in the Queensland and Western Australian Criminal Codes, effected by the decisions in Scarth and Callaghan, reflected the same instrumental approach to the statutory formula "to use reasonable care and take reasonable precautions". That view was justified by reference to the draftsman's reliance upon the Criminal Code Bill of 1880 and Stephen's intended incorporation in it of the common law criterion. The correctness of the criterion in its application to "gross negligence" under s 318 is not in issue in this appeal although the necessity for, and desirability of, such a direction may be questionable.
In seeking to exclude the common law criterion of criminal negligence from consideration by the jury of verdicts under s 319, the trial judge did not err in law. Properly understood, the direction was correct. Its potential for creating misunderstanding about the seriousness of the offence created by s 319 and the seriousness of the punishment which could be imposed for that offence was plain enough. The question is whether the direction thereby amounted to a miscarriage of justice within the meaning of s 568(1) of the Crimes Act and if so whether the proviso to s 568(1) applied.

[90]

It was submitted for Mr King that the trial judge's direction had the potential to cause the jury to discount the alternative verdict as an inadequate reflection of the seriousness of Mr King's conduct. It was not argued that it could have affected the jurors' understanding of the standard of criminal negligence necessary for a conviction of culpable driving under s 318. The submission was based on the premises that the trial judge erred in relation to the level of risk necessary to support a conviction under s 319 and in not directing the jury that the conduct of the accused in his manner of driving had to be such as was deserving of punishment by the criminal law. For reasons already given, those premises are not made out. The question that remains is whether the potential for misunderstanding of the trial judge's direction that the Crown did not have to prove that Mr King's manner of driving was such as to merit criminal punishment amounted to a miscarriage of justice within the meaning of s 568(1) and if so whether the proviso applied.
In Weiss v The Queen[89] this Court held that the term "miscarriage of justice" in the opening paragraph of s 568(1) of the Crimes Act referred to "any departure from trial according to law, regardless of the nature or importance of that departure."[90] That construction was based upon the historical roots of the term in the "Exchequer rule" derived from the decision of the Court of Exchequer in Crease v Barrett[91]. As the Court pointed out, when the term "miscarriage of justice" is so understood, the word "substantial" in the proviso has work to do.
As was said in Weiss "the legislative objective in enacting the proviso was to do away with the Exchequer rule and the language of the proviso is apt to achieve that objective."[92] The question whether or not by misdirection or error of law or procedure at trial the appellant had lost a fair chance of acquittal, was a matter to be considered under the proviso.
In seeking to instruct the jury that the direction, applicable to s 318 of the Crimes Act, about whether the conduct of the driver was deserving of punishment by the criminal law, was not applicable to s 319, the trial judge did not err in law. Defence counsel at the trial did not seek a redirection. That judgment, which may have been made for a variety of reasons, informs consideration of the extent to which, taken in context, the direction was likely to confuse or mislead the jury. The direction was infelicitous but did not involve a misstatement of the law. It was not argued that it in any way qualified the correct direction given by the trial judge in relation to s 318. The direction given by the trial judge in relation to s 319 did not constitute a departure from trial according to law. It did not constitute a miscarriage of justice. That being so, no question of the applicability of the proviso arises.
The Crown sought to invoke the proviso submitting, consistently with the reasons of the Court of Appeal, that the findings of fact made and the conclusion reached by the jury as to the more serious offences under s 318 meant that any misdirection as to the lesser offences under s 319 could not have affected the outcome in this case. That submission directed attention to the provisions of s 422A of the Crimes Act. That section conditions the jury's power to return a verdict of guilty of an offence against s 319, in relation to a person charged with an offence against s 318, upon their want of satisfaction that the person is guilty of the offence against s 318. That is to say, the jury has no power to return the alternative verdict unless first satisfied that the person is not guilty of the offence against s 318. Had it been necessary to consider the effect of that limitation on the application of the proviso, it would also have been necessary to have regard to the decisions of this Court in Gilbert v The Queen[93], Gillard v The Queen[94] and R v Nguyen[95]. There is, however, no need to consider either the effect of the limitation or its interaction with those decisions in order to dispose of this appeal.

[97]

To minds not steeped in a lifetime's experience of the criminal law, this complaint may seem strange. The jury convicted the appellant of two contraventions of s 318 after the trial judge had succeeded in the difficult task of giving a correct direction in relation to that offence. Yet the appellant submits that the convictions should be set aside because of a claimed deficiency in the trial judge's direction about s 319, to which section it was not necessary for the jury to turn.
The background to the appellant's complaint is as follows. The maximum sentence of imprisonment for dangerous driving causing death contrary to s 319 was five years. The maximum sentence of imprisonment for culpable driving causing death contrary to s 318 was 20 years. The appellant's submissions in this appeal seemed to assume that a jury is subject to opposing impulses - the impulse to perform its duty and the impulse to grant mercy. Where an accused person is charged with one offence but is open to conviction on an alternative, lesser offence if not convicted on the first, a jury's merciful impulses would tend to sway it to convict on the alternative offence. Of course, it would not necessarily push it as far as an acquittal on both offences. The impulse of duty would tend to push a jury towards conviction on some other offence if it thought the facts justified conviction and that the appellant merited punishment. The greater the gap between the criteria of liability for the offence charged and the criteria of liability for the alternative, lesser offence, the less likely it is that the jury will select the lesser offence as the one on which to convict. Had this jury acquitted of the s 318 offences and convicted of the s 319 offences, the appellant would have had a considerable advantage in terms of sentence. The sentences he received in relation to s 318 were greater than the maximum sentence that attaches to a contravention of s 319.
On the appellant's submissions, in cases of this kind there may come a point at which the jurors' perception of a duty to act so as to subject the accused to some punishment causes them to convict under s 318. That point may be reached if the jury directions indicated that the criteria of liability for the s 319 offences were remote from those for the s 318 offences. For if the jurors feel a duty to convict under s 318, that sense of duty may prevail over their instinct to follow the merciful course and convict under s 319.
The appellant submitted to the Court of Appeal and to this Court that when s 319 is put to a jury as an alternative to s 318, it must be a "realistic alternative". In the Court of Appeal, Redlich JA more neutrally said[97]:

[101]

Minds not steeped in a lifetime's experience of the criminal law might also think that in a case like the present juries would first decide whether to convict on the crime charged (s 318). Only if not satisfied beyond a reasonable doubt of the accused's guilt on that charge would juries move to consideration of a crime not charged - the alternative charge under s 319. Indeed, that course is contemplated by s 422A(1). That section confers power on the jury to convict the accused under s 319 only if it is not satisfied that the accused is guilty of the offence charged under s 318. Further, in this case the trial judge told the jurors that they did not have to consider any question of the alternative s 319 contraventions unless they acquitted the accused on the s 318 charges. Her instruction was clear, and she gave it at least three times. She also told the jurors that it would be a betrayal of their oaths to arrive at a verdict by way of compromise between the s 318 and the s 319 offences.
A point in favour of the appellant's approach is that to speak of the "jury" as approaching its task in a particular way is not always realistic. "Trial by jury" is trial by jurors. Different jurors are likely to react to what they hear and see in court in different ways. As time passes, they are likely to reflect, inside and outside the court, about their perceptions in individual ways. It is true that their formal deliberations after the end of the trial, and their informal deliberations before that time, are likely to be structured along lines which the stronger spirits on the jury mark out. But the jury is unlikely to move monolithically, obedient to a single superior will or embodying a unitary will.
It is not possible in this appeal to devote any further consideration to the question of overturning the authorities which assume that, whatever statutes say, whatever judges say[99], whatever the order of charges on an indictment, and whatever the order in time of the events to which particular charges relate[100], the jury may convict on a lesser charge without considering whether to convict on the greater charge. There are questions about these authorities. Is it right to extend to other crimes the principles which apply in relation to murder and an alternative verdict of manslaughter? Do those authorities do any more than illustrate one virtue claimed for the jury system: the facility it offers jurors to frustrate laws which they perceive to be unjust[101]? How well do those authorities sit with other authorities to the effect that the entire system of jury trial in criminal cases rests on the assumption that jurors understand and comply with judicial directions? The merits of the assumption were insufficiently debated in this appeal to justify considering whether to overturn the authorities which rest on it.
It is necessary now to turn to the appellant's specific complaint. To direct a jury that they should not convict unless the accused's conduct is "deserving of punishment by the criminal law" is curious. Such a direction may have merits in relation to the task which caused it to be developed - distinguishing the type of negligence which is sufficient for civil liability in tort from the type of negligence necessary to establish manslaughter[102]. The merits of that body of law were not argued in this appeal, and what follows is not intended to disturb it. Outside that area, however, it may be said that in modern times it is the legislature which determines what conduct is deserving of punishment. It is not the judiciary. And it is certainly not the jury. It is risky to adopt the course of leaving to a jury as a criterion of guilt the question of whether particular conduct is deserving of punishment by the criminal law. When this is done with a succession of different juries, there is a risk of like cases being treated differently, and different cases being treated alike. Although it is not always possible, it is desirable for the application of legal rules to depend on clear and comprehensible factual criteria. Once particular facts are found, a conviction will follow. Once a reasonable doubt arises as to particular facts, an acquittal will follow. To say that an accused is not to be convicted of a particular crime unless his or her conduct is deserving of punishment by the criminal law may be to say only that that conduct, once established, amounts to that crime. The words which the Irish Court of Criminal Appeal used for manslaughter in The People (Attorney-General) v Dunleavy[103] may be transposed to the s 318 offence:

[104]

With respect to those of a contrary opinion, it is not a necessary condition for conviction of an accused person under either s 318 or s 319 that the jury considers that the accused person's conduct merits criminal punishment, and juries should not be directed that it is. Even if, contrary to that view, it is a necessary condition for conviction under s 318, I agree with Bell J that to suggest that the necessary condition exists for s 318 but not s 319 carries the risk that the jury will conclude that s 319 is an offence of a minor character not meriting imprisonment[104]. That is what the direction under consideration in this appeal did.
The trial judge's adoption of that course was a "wrong decision on [a] question of law" within the meaning of s 568(1) of the Crimes Act. Should the proviso to s 568(1) be applied? The proviso is that the relevant appellate court "may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." The appellant submitted that the prosecution case on s 318 was "weak" or "very weak". The respondent denied this. The respondent was correct in that denial. The respondent submitted: "In light of the fact-finding, any misdirection on the lesser offence could not have affected the outcome in this case." (footnote omitted) But the respondent did not engage in a detailed factual analysis sufficient to demonstrate that the prosecution case was so strong as to justify the application of the proviso.
I agree with the orders Bell J proposes.
BELL J. The facts and the procedural history are set out in the plurality reasons and need not be repeated here.
Mr King appeals against his convictions on two counts of culpable driving causing death contrary to s 318(1) of the Crimes Act 1958 (Vic) ("the Act") on the ground that the trial judge misdirected the jury as to the elements of the statutory alternative offence of dangerous driving causing death contrary to s 319(1) of the Act[105]. He complains that it was wrong to direct the jury that, in the case of dangerous driving, the manner of driving need only have "significantly" increased the risk of "hurting or harming others" and that it "need not be deserving of criminal punishment". The directions did not conform to the guideline respecting the elements of dangerous driving formulated by the Victorian Court of Appeal in R v De Montero[106], a decision that was delivered after Mr King's trial. The correctness of that guideline is the subject of the Crown's Notice of Contention.
I agree with French CJ, Crennan and Kiefel JJ that proof that an accused's manner of driving created a "considerable risk of serious injury or death to members of the public" is not an element of dangerous driving causing death. I also agree that there is no requirement for the jury to be directed that the manner of driving must have been such as to "merit criminal punishment". The trial judge's directions as to the elements of the offence of dangerous driving causing death were not wrong in either of these respects. However, this conclusion is not determinative of the appeal. The gravamen of Mr King's challenge is that the directions failed to discriminate accurately between the culpable driving and dangerous driving offences. In particular, he asserts that the trial judge's direction that, in the case of dangerous driving, it was not incumbent on the Crown to establish that Mr King's driving was deserving of criminal punishment, wrongly conveyed that dangerous driving is an offence of a relatively minor character. I accept that is so. Since, in the view that I take, proof of each offence required that the jury form a judgment as to the degree to which Mr King's driving departed from the objective standard that the law imposes on all who drive motor vehicles on or near public roads, this was a significant misdirection. I would allow the appeal.
In what follows, the discussion of proof of the offence of culpable driving causing death is confined to those cases in which the form of culpability alleged is negligence. Section 318(2)(b) of the Act provides that a person drives a motor vehicle in a culpably negligent manner if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case. The requirement that the departure from the standard be "to a gross degree" is a statement of the same high degree of negligence required to support conviction for manslaughter[107]. The offence of culpable driving causing death, as enacted, was a misdemeanour punishable by a maximum of seven years' imprisonment[108]. At that time, manslaughter was punishable by a maximum sentence of 15 years' imprisonment[109]. Although the elements of the two offences overlapped, manslaughter was the more serious offence.
The maximum penalty for culpable driving causing death has been increased from time to time. It was increased to 15 years' imprisonment in 1992[110]. This brought culpable driving causing death into line with manslaughter. In 1997, the maximum sentence for both offences was increased to 20 years' imprisonment[111]. The difference between the objective seriousness of the two offences as gauged by the maximum sentence has, since 1992, been removed. It was the recognition of this circumstance that appears to have led the Victorian Court of Appeal to characterise culpable driving causing death as a species of involuntary manslaughter[112]. Subsequently, in R v De'Zilwa, the Court of Appeal said that, on the trial of a presentment charging negligent culpable driving causing death, the judge should direct the jury that guilt required proof that the accused's driving involved such a great falling short of the standard of care, and such a high risk that death or serious injury would follow, that it merited criminal punishment[113]. This assimilated the directions on a prosecution for culpable driving causing death with the standard directions on a prosecution for manslaughter by criminal negligence[114]. De'Zilwa was decided before dangerous driving causing death was introduced into the Act as an alternative verdict on the trial of a count of culpable driving. There was no occasion to consider whether the direction that the accused's driving had to be such as to "merit criminal punishment" might mislead by comparison with the statement of the elements of the alternative offence.
The offence of dangerous driving was introduced into the Act in 2004[115]. The central concept on which liability depends, driving in a manner dangerous to the public, was one with an established meaning in the context of driving offences. In Jiminez v The Queen, six Justices approved Barwick CJ's encapsulation of that meaning in McBride v The Queen[116]:

[106]

Jiminez and McBride were each concerned with the offence under the New South Wales statute that broadly equates to the offence of dangerous driving provided by s 319(1) of the Act[117]. New South Wales did not have a statutory equivalent to the offence of culpable driving causing death provided by s 318 of the Act. Grossly negligent driving occasioning death was susceptible of prosecution for manslaughter in New South Wales. However, in neither McBride nor Jiminez was the accused charged with manslaughter and no question arose in either case of discriminating between proof of driving in a manner dangerous and proof of gross negligence. The distinction between these two forms of liability for driving conduct was the question with which the Victorian Court of Appeal was concerned in De Montero.
In De Montero, in his report to the Court of Appeal, the trial judge drew attention to the absence of guidance as to the directions to be given in a case in which dangerous driving was left as an alternative verdict on a presentment charging culpable driving[118]. The guideline that the Court of Appeal formulated in De Montero was designed to address this deficiency. It is set out in the reasons of French CJ, Crennan and Kiefel JJ[119]. In contention are the requirements that the manner of driving "merit criminal punishment" and create "a considerable risk of serious injury or death to members of the public".
The direction that the accused's conduct must merit criminal punishment derives from Bateman[120], in which a medical practitioner appealed to the English Court of Criminal Appeal against his conviction for the negligent manslaughter of a patient. The direction proposed in Bateman was designed to impress upon the jury the distinction between liability in tort and the higher degree of negligence required to support liability for manslaughter[121].
Driving that is culpably negligent within the meaning of s 318(2)(b), or dangerous within the meaning of s 319(1), is in each case conduct that warrants punishment under the criminal law. Both sections create serious criminal offences for which substantial terms of imprisonment may be imposed. To direct the jury that, to convict an accused of culpable driving causing death, the driving must have been such as to warrant criminal punishment, and not to give a like direction with respect to dangerous driving, may suggest that the latter offence encompasses conduct that does not warrant such punishment. It was with a view to avoiding this misconception that the Court of Appeal in De Montero said that a "meriting criminal punishment" direction should be given with respect to dangerous driving.
The logic of a direction on the trial of a criminal offence that the accused's conduct must "merit criminal punishment" has been questioned[122]. The elements of manslaughter by criminal negligence stated by the Full Court in Nydam v The Queen[123] include that the accused's conduct must warrant punishment under the criminal law. This appeal does not provide the occasion to consider the continued usefulness of the direction in the case of negligent manslaughter. However, I agree with French CJ, Crennan and Kiefel JJ that there is no warrant for transposing the direction to the trial of a count of dangerous driving causing death.
Neither party challenged De'Zilwa in their written submissions. However, on the hearing of the appeal, the utility on the trial of a count of culpable driving causing death of the "merit criminal punishment" direction was in issue. The direction does not aid the jury's appreciation of what extent of departure from the standard of care amounts to a "gross degree" since departure from the standard of a lesser degree is also punishable as a serious criminal offence. The direction is likely to mislead in any case in which the alternative verdict is left, given that the difference between the offences does not turn on proof that culpable driving merits criminal punishment. In my opinion, the direction should be confined to the offence of manslaughter by criminal negligence.
The principal concern of the Court of Appeal in De Montero was the need to contrast the quality of the conduct required for proof of each offence in a case in which dangerous driving causing death is left as an alternative to culpable driving[124]. The Court distinguished the offences by reference to the degree of risk of harm and the extent of potential harm[125]. The Court concluded that the distinction was between proof of driving conduct involving a "high" risk of serious injury or death in the case of culpable driving, and a "considerable" risk of that outcome in the case of dangerous driving[126]. Its assessment of the degree of risk of harm drew on the test for determining whether an act is "dangerous" in the context of manslaughter by unlawful and dangerous act[127]. The Court's assessment of the extent of potential harm paid regard to the circumstance that, where a charge is laid under s 319, there will have been death or serious injury[128].
Mr King supported the reasoning in De Montero. He acknowledged that the requirement that the manner of driving create a "considerable risk of serious injury or death to members of the public" is a more demanding test than is stated in Jiminez and McBride. He submitted that those cases are to be distinguished because the New South Wales offence with which each was concerned did not require proof that the manner of driving caused the death (or grievous bodily harm); rather, it was a defence that it did not[129]. More generally, Mr King urged caution in applying decisions from other jurisdictions to the offence of dangerous driving causing death under the Act because Victorian law makes provision for a greater number of tiers of statutory liability for driving offences. In particular, it was said that other jurisdictions do not have an "intermediate tier" that equates to the offence provided by s 319(1) of the Act[130].
Neither of Mr King's submissions should be accepted. The difference in the number of tiers of statutory driving offences is not a relevant distinction. In other jurisdictions, conduct prosecuted in Victoria as culpable driving causing death under s 318 is prosecuted as negligent manslaughter. Nor is the requirement of a causal link between the driving and death (or serious injury in the case of an offence of negligently causing serious injury under s 24 of the Act) material to the content of driving in a manner dangerous to the public.
Driving a motor vehicle on or near a public road is attended by risk of injury to persons in the vicinity. In the event of a collision with another vehicle or with a pedestrian, it is likely that at least serious injury will result. There is no need to import a variant of the test of whether an unlawful act is also a "dangerous act" in the context of manslaughter into the determination of whether the manner of driving a motor vehicle is dangerous. The content of the adverbial phrase "in a manner dangerous to the public" was one with a well understood meaning in the context of driving offences at the date Parliament enacted the offence of dangerous driving causing death. Proof of the offence in accordance with the statements in McBride does not require that the manner of driving create a "considerable risk of serious injury or death to members of the public".
A test which discriminates between the culpable driving and dangerous driving offences by reference to whether the risk of serious injury or death to members of the public is "high" or "considerable" is not, in any event, well suited to its intended purpose. In the context of driving a motor vehicle on or near a public road, it calls for a judgment of excessive refinement. In my opinion, the Court of Appeal's statement in De Montero of the further directions to be given in a case in which dangerous driving is left as an alternative verdict accurately captures the difference between the offences in a way that is likely to be readily understood by a jury. The Court of Appeal said[131]:

[108]

The Crown was critical of this analysis in the written submissions filed in support of its Notice of Contention. It said that the analysis "seeks to introduce the concept of fault rather than an objective test of criminal liability" and that it wrongly "treats dangerous driving as a lesser species of criminal negligence", whereas liability for the offence "is to be treated as determined by statute".
The statute makes it an offence to drive a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances of the case. Driving a motor vehicle is an inherently dangerous activity. However, as Jiminez makes clear, the prohibition on driving in a manner dangerous to the public has never been an absolute one in this country[132]. Thus, as is explained in that case, the liability of a driver who falls asleep at the wheel depends upon whether she ought to have known that she was running a real risk of falling asleep at the wheel[133].
To the extent that the Crown's written submissions may be thought to propose a dichotomy between dangerous driving and negligence, they raise an issue concerning the effect of the decision in Jiminez. In the joint reasons in that case, driving in a manner dangerous was said to involve "some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle"[134]. The statement echoes that of Barwick CJ in McBride that the quality of being dangerous to the public is in "sharp contrast to the concept of negligence" and "requires some serious breach of the proper conduct of a vehicle upon the highway"[135]. The contrast drawn in each case is between proof of a manner of driving amounting to a serious departure from the proper conduct of the vehicle, with the attendant risk of harm to the public, on the one hand, and liability in tort, on the other. It is the point that was made by Lord Hewart CJ in Bateman respecting liability for negligent manslaughter. His Lordship observed that, in a civil action, it does not matter how far short of the standard of reasonable care the defendant falls, "[t]he extent of his liability depends not on the degree of negligence, but on the amount of damage done"[136]; whereas, in a criminal court, "the amount and degree of negligence are the determining question."[137]
The offences of negligent culpable driving and dangerous driving are each subject to an objective test of liability. Neither requires proof that the accused possessed a subjective awareness of, and indifference to, the risk created by his or her driving. The mens rea for each is no more than the intention to do the acts involved in driving the motor vehicle. In neither case is it incumbent on the prosecution to prove a subjective "intention to drive badly."[138]
The law imposes on all who drive motor vehicles a duty to exercise reasonable care for the safety of others who may be on or near the roadway. In McCrone v Riding, this standard was described as "impersonal and universal, fixed in relation to the safety of other users of the highway."[139] In McCrone, a charge of careless driving had been dismissed by the justices of the peace after taking into account the youthful defendant's lack of driving experience. The appellate Court identified the error in this approach as allowing the existence of two standards[140]. The statement of the standard formulated with respect to careless driving was adopted by this Court in R v Coventry[141], a case concerned with driving in a manner dangerous. As this Court explained, the standard is impersonal in that it does not vary with individuals and universal in that it applies to all who drive motor vehicles[142]. Nothing in the decision in Coventry, in which special leave to appeal from the order of the South Australian Court of Criminal Appeal was refused, suggests that this Court considered the standard to be other than "the full standard of care which is due by anyone who undertakes to handle a dangerous instrument."[143]
In my opinion, the decisions of this Court in Coventry, McBride and Jiminez do not require or support a distinction, other than of degree, between proof of driving in a manner dangerous and proof of negligent culpable driving. This is not to say that driving in a manner dangerous incorporates proof of negligence as an element. If it did, no doubt it would be necessary to prove the gross departure from the standard of care necessary to support liability for an offence of criminal negligence[144]. Liability for driving in a manner dangerous to the public depends upon proof of a serious breach of the proper conduct of the vehicle. The determination of whether a feature, or features, of the accused's driving answers that description requires a comparison between that manner of driving and the standard of care which the law demands of all who drive a motor vehicle on or near a public road. It is that standard that gives content to the concept of "the proper conduct of a vehicle upon the highway"[145]. I do not agree that dangerous driving and negligence are to be distinguished upon a view that not all dangerous driving involves negligence. Any serious breach of the proper conduct of a vehicle on or near a public road that exposes the public to risk of harm is negligent, regardless of the skill with which the manoeuvre is executed. Whether the breach departs from the standard of care to a gross degree, such as to be culpably negligent within the meaning of s 318(2)(b) of the Act, is a matter for judgment.
In R v Buttsworth[146], the New South Wales Court of Criminal Appeal considered the relationship between negligent manslaughter and driving in a manner dangerous to the public in the context of a challenge to the adequacy of the directions respecting the distinction between the offences. The jury had been directed that the distinction was essentially one of degree. O'Brien CJ of Cr D, who gave the leading judgment, undertook a comprehensive review of the history of negligent manslaughter and of the statutory driving offences before concluding that the directions were consistent with authority[147].
A footnote in the plurality reasons in Jiminez refers with apparent approval to the following passage in O'Brien CJ of Cr D's judgment[148]:

[117]

In my view, the penultimate sentence of this direction is more than infelicitous; it is wrong. Although the prosecution was not required to prove, as an element of the offence of dangerous driving causing death, that Mr King's conduct merited criminal punishment, it is not correct to identify that circumstance as an important difference between the two offences.
Mandie JA, giving the leading judgment in the Court of Appeal, thought it "most unlikely" that the jury would have considered that the lesser offence was not deserving of criminal punishment since it was an offence and therefore necessarily subject to criminal punishment[159]. Given that the jury were told that the need to establish that Mr King's driving warranted criminal punishment was one of two important differences between the offences, I would not draw that conclusion. In my view, there is a significant risk that the jury may have understood the directions to convey that culpable driving causing death is a serious criminal offence deserving of criminal punishment, in the sense that a person convicted of it may be sentenced to a term of imprisonment, whereas dangerous driving causing death is an offence of a regulatory character, punishable by a fine and licence disqualification or the like.
The Crown submitted that any error in the statement of the alternate offence was not material because the jury were directed to consider Mr King's guilt of culpable driving causing death and only in the event that they were not satisfied that guilt had been proved beyond reasonable doubt were they to consider the lesser offence. That submission should be rejected for two reasons. The first is that, to the extent that the directions wrongly diminished the seriousness of the alternative offence, they might be thought to have enlarged the scope of conduct which the jury assessed as departing "to a gross degree" from the standard that the law imposes on the drivers of motor vehicles. The point was made by Redlich JA in his concurring judgment. His Honour observed that "the practical content of each offence may be informed not only by its elements being accurately described, but by the counterpoint of the content of the other offence."[160]
The second reason for rejecting the Crown's submission is that Mr King was in the jury's charge for both the culpable driving and dangerous driving offences. The jurors were at liberty to organise their discussion in whatever manner appeared to them to be convenient[161]. This appeal does not raise the application of the principles stated in Gilbert v The Queen[162] to circumstances in which the failure to leave an alternative count on a presentment for an offence other than murder is suggested to amount to a miscarriage of justice. However, there are statements in Gilbert that are apt to the issue raised in the present appeal. In their joint reasons, Gleeson CJ and Gummow J observed[163]:

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