R v De Montero; DPP v De Montero [2009] VSCA 255

R v De Montero; DPP v De Montero [2009] VSCA 255 - VSCA 2009 case summary — Zoe

[54]

But in this state, Parliament has been fit to act upon the view that, in order to discourage dangerous practices by the drivers of motor vehicles, it is necessary to hold out the threat of serious punishment, whenever death is caused by a contravention of the prohibitions against driving at a speed or in a manner which is dangerous to the public. In our view of s 14 a charge of driving recklessly or in a culpably negligent manner must no doubt be supported by evidence which satisfies the jury that the defendant was guilty of a very high degree of indifference to the risk of injury to others. The charge is said to involve mens rea - some indeterminate state of the defendant's mind which no-one has so far been able to define ... but a proper charge of driving at a speed or in a manner which is dangerous to the public the prosecution is no so much concerned with the state of the defendant's mind as with his conduct. The essence of this charge is the objective fact - the risk of injury to others. In this form of the charge it alleges that the conduct of the defendant attained to a standard which is 'objective impersonal and universal, fixed in relation to the safety of other users of the highway' (McCrone v Riding [1938] 1 All ER 157.) As a matter of pure reason, we think that the difference between these two forms of offences is much more obvious in the approach than in the final result. A man can't be held to be driving recklessly or with culpable negligence unless the manner of driving involves 'danger to the public' and it is difficult to see how a jury, properly directed could hold that the defendant was driving at a speed or in a manner dangerous to the public, unless the evidence justifies the inference of a fairly high degree of indifference to the safety of others ...

The fact to be proved in this case was that the defendant was driving in a manner which was dangerous to the public, and if it is necessary to attempt a definition we should say that driving in a manner dangerous to the public means the act of driving in a manner which any ordinary person (in the situation of the driver) would recognise as dangerous, in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road - the common place incidents of the use of the highway in question under the conditions of modern transport by fast moving vehicles.[34] (Emphasis added)

[58]

The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public, but the need for death or injury to a person to result from impact with a vehicle so driven may make that question unlikely to arise, though the possibility of its doing so must be acknowledged.

This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage, though to complete the offence under the section, impact causing damage must occur during that driving. Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section.

This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others**.** This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby. These distinctions make it imperative that the jury be specifically directed as to the criteria to be applied and the distinctions to be observed in determining whether any particular speed or manner of driving can have the quality, intrinsic or occasional, of being dangerous to the public within the meaning of the section: and that the particular features of the driving charged as in breach of the section be isolated for the jury and related to these criteria. (Emphasis added)

[76]

Our statute law provides for something like an ascending scale of offences. The least of these is the offence of 'driving without due care and attention'. That covers any material departure from the high standard of care which is due by anybody who drives a motor vehicle. It is the standard which gives a civil right of action for damages; but, over and above that, there is the more serious offence of driving in the manner alleged in the information in this case, namely, 'driving in a manner dangerous to the public'. I think that the distinction between these two offences is best explained by pointing out to you that all - or at any rate most - of us are liable at times to do things that we ought not to do, and to leave undone things that we ought to have done. When we use the public highway, we must expect to meet people like ourselves - people who are only human beings - with the human tendency to depart, at times, from the full standard of care and skill. That you may regard as negligence - 'driving without due care and attention' - but, nevertheless as an ordinary 'risk of the road'. If it is a case of 'You today, and me tomorrow', we have to accept the risk as one of the ordinary incidents of modern life. If we live in an age of aeroplanes and fast-moving traffic, we have to take things as they are - the thick with the thin, and you the pedestrian today and tomorrow the driver, are to say where the line should be drawn between a mere lapse from due care and attention and conduct which is plainly blameworthy.

If it is the sort of thing that any of us might be liable to do - although we might be sorry for it afterwards - you may regard it as driving without due care and attention, but, nevertheless, as an ordinary - and in one sense a necessary - risk of any road on which vehicles are driven by ordinary people like ourselves - people who mean well, but sometimes make mistakes. But over and above that, it must be a matter of common knowledge that there are some people who - at times - impose on other users of the road a risk which is by no means a fair or necessary risk of the road. They drive in a manner which imposes upon other users of the road a risk which a reasonable person, in the position of the driver, ought to recognise as a real danger to the public. That is what this charge means, when it charges the accused with driving in as manner dangerous to the public. It refers to the sort of risk which is in no sense an ordinary or necessary risk of the road, and to a manner of driving which is treated as a fairly serious crime.

[126]

Section 319 is as follows:

A person who by driving a motor vehicle at a speed that is dangerous to the public, having regard to all the circumstances of the case, causes death to another person, is guilty of an indictable offence.

Again, an indictable offence merely means one trial before a judge and jury.

Section 422A of the Crimes Act so far as is relevant:

If on the trial of a person charged with an offence of culpable driving causing death the jury are not satisfied that he or she is guilty of the offence charged, but are satisfied that he or she is guilty of an offence against s 319

that is dangerous driving causing death -

the jury may acquit the accused of the offence charged and find him or her guilty of the offence against s 319.

In other words if you were to acquit the accused of the charge on a presentment of culpable driving, you must then go on to consider the alternative count by statute of driving a motor vehicle at a speed that is dangerous to the public, having regard to all the circumstances.

So that the question in regard to this charge, that is driving at a speed dangerous to the public is whether in the judgment of yourselves as the jury the speed at which the accused was driving viewed objectively - I underline the word objectively - amounts to driving at a speed dangerous to the public. The question is not whether the accused intended to ride, or appreciated that he was riding at a speed dangerous to the public, but whether in your judgment, that is the judgment of the jury, a reasonable person in the situation of the accused would have appreciated that he was riding at a speed dangerous to the public. So that the test is an objective one, not what is sometimes called a subjective. It is what a reasonable person in the situation would or should have appreciated that he was riding at a speed dangerous to the public.

The [crime is] committed by the act of driving or riding in a manner which any reasonable person in the situation of the rider would recognise as dangerous in the sense that it involved a risk of serious injury or death to others is one which exceeds the ordinary risks of the road and amounts to a real danger to the public. Ordinary risks of the road include those arising from the sort of faulty driving and lack of care which may be expected due to human frailty from time to time from ordinary drivers or riders.

The sort of driving or riding which constitutes this crime is more serious than that. It is driving or riding which a reasonable person in the situation of the rider would understand to be such as would give rise to a serious risk of death or injury to members of the public, going beyond the ordinary risks of the road. It is driving or riding which is therefore fit to be regarded as a serious crime.

If the driving or riding, although negligent you might say, does not go beyond what might fairly be regarded as an ordinary risk of the road, a crime of causing death by dangerous driving or riding is not committed whatever else it might be said about it.

You will note that both s 319 [sic] that is the culpable driving section, and 319, the dangerous driving section, both refer to 'all the circumstances of the case'. Thus in assessing the evidence you need to give consideration to matters such as the road configuration, the state of the traffic, the time of the day, the general traffic situation at the time, the visibility, and any other matter which from the evidence you accept affects the circumstances of the case.

I should add in one respect that merely exceeding the speed limit need not of itself compel a finding of guilt of one or other or either of these alternative charges. But of course you will consider whether the extent of the excess speed, depending on your view of the evidence, satisfies you beyond reasonable doubt in the case of the count on the presentment as to whether there was gross negligence on the part of the accused or whether objectively speaking it was a speed dangerous to the public as I have sought to explain.

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