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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Culpable Driving


Under section 29 of the Crimes Act 1900 it is an offence to cause death or grievous bodily harm to another person by the culpable driving of a motor vehicle.

To find a person guilty of an offence under this section, the prosecution must prove beyond reasonable doubt that a person:

  1. Drove:
    1. in a negligent manner;
    2. under the influence of alcohol or a drug to the extent that they were incapable of having proper control of the vehicle; and in doing so,
  2. Caused the death of another person, or caused an injury amounting to grievous bodily harm to another person.

Negligence for the purposes of this section requires a subjective determination. A person will be deemed to have driven their vehicle negligently if they fail to “observe the standard of care that a reasonable person would have observed in all the circumstances of the case”. This failure must be done unjustifiably and to a gross degree, which places the threshold of proving negligence for the offence of culpable driving higher than that for the offence of negligent driving under road transport legislation.

There are two main culpable driving offences.

Culpable driving occasioning grievous bodily harm

If you have been in a motor vehicle accident where someone has been injured, you may be at risk of being charged with this offence. The seriousness of any injury suffered and the manner of your driving will determine whether you will be charged under this section and will affect the severity of any penalty imposed.

Grievous bodily harm is defined by the court to mean a really serious injury. For example, a minor cut or bruise would not be considered grievous bodily harm. A broken bone may constitute grievous bodily harm.

If you are found guilty of this offence, a period of imprisonment is very likely, even for a first offence. The maximum term of imprisonment available to the court is 10 years. If the offence is one committed against a pregnant woman, this will be treated as an aggravated offence and the maximum penalty rises to 12 years.

If you are convicted of the offence of culpable driving automatic disqualification periods also apply. For a first offence, the automatic period of disqualification is six months. If it is a repeat offence, the automatic period of disqualification is 24 months but the court has the discretion to impose a longer ban.

Culpable driving occasioning death

If you have been in a motor vehicle accident that caused the death of another person, you are at risk of being charged with this offence. This is a serious charge and it is imperative that you seek legal advice as soon as possible after the accident, even before you are charged.

If you are found guilty of this offence, a period of imprisonment is a very likely possibility, even for a first offence. The maximum term of imprisonment available to the court is 14 years. If the offence is one committed against a pregnant woman, the maximum penalty rises to 16 years.

If you are convicted of the offence of culpable driving, automatic disqualification periods also apply. For a first offence, the automatic period of disqualification is six months. If it is a repeat offence, the automatic period of disqualification is 24 months but the court has the discretion to impose a longer ban.

If you require legal advice or representation in any legal matter please contact Armstrong Legal.

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