Thursday, June 21, 2012

What are the mental elements of dangerous driving?

Dangerous driving is risk-based, not negligence-based: King v The Queen [2012] HCA 24 (20 June 2012). It is not necessary to ask whether there has been a sufficiently great level of negligence to attract criminal rather than merely civil liability. Such negligence could be sufficient if it reached a high enough level, but it is not a necessary ingredient of dangerous driving. So, on the 3-2 majority's reasoning in King, the judge had not been wrong to direct the jury that the prosecution did not have to prove criminal negligence [48], [50].

The appellant submitted that the judge had steered the jury away from what in the context of the trial was conviction on the lesser offences. More serious than dangerous driving causing death were the offences on which he had been convicted, culpable driving causing death. The judge, said the appellant, had given the jury the impression that dangerous driving causing death was too trivial an offence to reflect his culpability, as it didn't even require criminal negligence. In diminishing the seriousness of dangerous driving (here, the conviction sought by the defendant) the judge may have conveyed to the jury that the more serious offence of culpable driving could more easily be committed.

You can see that while the judge had "not been wrong" to direct the jury that criminal negligence did not have to be proved for dangerous driving, at the same time a direction that criminal negligence was required would also have been correct in the circumstances. Such negligence would be sufficient, albeit not necessary for liability. The majority should have held that the judge was wrong in the context of the evidence. The minority, Heydon and Bell JJ, would have allowed the appeal on the grounds that this had been a misdirection which had created a substantial miscarriage of justice because the defendant may have been deprived of a more favourable verdict. They substantially agreed with the majority on the elements of dangerous driving.

When a court asks whether the driving in question demonstrated a marked departure from the standard of care that a reasonable person would observe in all the circumstances (R v Roy, 2012 SCC 26, discussed here on 15 June 2012), it is focusing on one sort of dangerousness: that which is accompanied by negligence. Usually examples of dangerous driving will involve some degree of negligence, above a minimum level (marked departure from the reasonable person's standard of care), and this can include even momentary inattention in circumstances where particular care and attention are required (King at [46]). However negligence is not an element of dangerous driving (Bell J [94]), just as (this is me now, not Bell J) stabbing is not an element of murder. But just as in the circumstances of a given case stabbing may have to be proved to secure a conviction for murder, so too negligence may have to be proved to secure a conviction for dangerous driving.

It is inevitable that jurors will have to assess the driving in the instant case against an imagined scale of qualities of driving. Somewhere on the scale careless driving becomes dangerous driving, and somewhere else on the scale dangerous driving becomes a more serious offence. The statutory context is always important. The extent to which the defendant departed from the objective standard required by the law for all drivers has to be assessed (Bell J at [74]). It is of no use to tell jurors that the defendant's driving must be such as to "merit criminal punishment" (Bell J [74], Heydon J [68]) because the criterion for guilt should not be left to jurors but rather is for the law to lay down. The criterion is whether the manner of driving gave rise to potential danger in a real sense to a person in the vicinity (French CJ, Crennan and Kiefel JJ at [46], applying Barwick CJ in McBride v The Queen [1966] HCA 22, (1966) 115 CLR 44). Plainly, in assessing responsibility for dangerous driving it is necessary to compare the level of danger to that required for liability for comparable offences. This does not mean that comparison with civil law negligence is useful: Bell J at [102].

Bell J stated [92] the mens rea requirement for dangerous driving as being confined to "the intention to do the acts involved in driving". She said that liability is subject to an objective test, citing the old case R v Gosney [1971] 2 QB 674 at 679. But in Gosney D 's conviction was quashed because she had made the same mistake as a reasonable driver would have made, and the Court of Appeal held that dangerous driving was not an offence of strict liability (for this point I rely on my 1978 Fourth Edition of Smith and Hogan, Criminal Law, pp 88-89). Bell J's dictum on mens rea is difficult to reconcile with negligence being a sufficient but not a necessary condition for liability.

By comparison, the Supreme Court of Canada required in Roy, above, mens rea elements of either an unreasonable failure to recognise a risk of the required kind or an awareness of the actual risk created by the driving and a deliberate running of that risk. The culpability or fault requirement inherent in the notion of mens rea is generally said to consist of either intention or recklessness as to the essential factual elements of an offence. But the meaning of intention in criminal law is context-dependent, sometimes extending to consequences and sometimes not.

Since we are not allowed to include criminally negligent failure to recognise danger as an element of the offence, we must slip it in as a relevant consequence under intention. The mens rea elements of dangerous driving here would therefore be: either intention to drive with knowledge of the danger created by the manner of driving, or intention to drive accompanied by a failure to appreciate the danger that a reasonable person would recognise as being created by the manner of driving.