Yesterday, the High Court of Australia delivered judgment in King v The Queen.
Under section 318 of the Victorian Crimes Act 1958 a person drives a motor vehicle culpably if they drive negligently (that is to say, if they fail unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case) or if they were under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.
In a trial for culpable driving, there is an alternative verdict available to the jury so that if the jury is not satisfied that the person is guilty of culpable driving, they can nonetheless convict the person of the lesser offence of dangerous driving causing death under section 319 of the Crimes Act 1958.
Mr King was tried and convicted of two counts of culpable driving. In his appeals, he did not challenge the trial judge’s summing-up to the jury in relation to the offence of culpable driving. Instead, 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. The trial judge’s direction was in the following terms:
There are two important differences between the offence of culpable driving causing death, and dangerous driving causing death that reflect the fact that the offence of culpable driving causing death is a more serious offence. First, the Crown must prove beyond reasonable doubt that the accused drove in a way that significantly increased the risk of harming others. There does not have to be a high risk of death or serious injury. That is only a requirement for culpable driving causing death by gross negligence. And secondly, unlike the offence of culpable driving causing death by gross negligence, in relation to the offence of dangerous driving causing death the Crown does not have to satisfy you that the driving is deserving of criminal punishment. The second element will be met as long as you find that the accused drove in a speed or manner that was dangerous to the public.
Thus, King complained that because it was said that dangerous driving did not require the jury to be satisfied “that the driving is deserving of criminal punishment”, if the jury thought that his driving in fact was deserving of criminal punishment then the jury would not have considered the alternative verdict. In other words, it had the potential to cause the jury to discount the alternative verdict as an inadequate reflection of the seriousness of King’s conduct. As Heydon J observed, “To minds not steeped in a lifetime's experience of the criminal law, this complaint may seem strange.”
There is, of course, a logical difficulty with King’s argument, and in particular his apparent satisfaction with the direction given in relation to the culpable driving offence.
In any event, the majority in the High Court (French CJ, Crennan and Kiefel JJ, Heydon J and Bell J dissenting) held that properly understood the direction did not amount to a misstatement of the law, and that any confusion that might have been caused by its infelicitous wording did not amount to a miscarriage of justice warranting intervention.