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Culpable Driving Causing Death

In Victoria, the maximum penalty for culpable driving causing death is 20 years’ imprisonment or a fine of up to 2400 penalty units (or both). A charge of culpable driving causing death will ordinarily result in a custodial sentence with a period of time spent in jail, though this is not inevitable.

The Offence Of Culpable Driving Causing Death

The offence of culpable driving causing death is contained in section 318 of the Crimes Act 1958 which states: “Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence.”

What is a “motor vehicle”?

A motor vehicle is a vehicle that is used, or intended to be used, on a highway, and that is built to be propelled by a motor that forms part of the vehicle. It does not include, amongst other things, trains, trams and motorised wheelchairs used solely for the conveyance of an injured or disabled person.

A car, truck or bus would be considered a motor vehicle.

What is Culpable Driving?

Under section 318 of the Act, this term is defined to mean driving:

  • recklessly;
  • negligently, unjustifiably and to a gross degree (this is a much worse standard than the ordinary offence of negligent driving);
  • whilst so affected by alcohol as to be incapable of having proper control of the motor vehicle; or,
  • whilst so affected by drugs as to be incapable of having proper control of the motor vehicle.


Pursuant to section 318 of the Act, a person drives recklessly if he or she “consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his [or her] driving”.

If a person disregarded the risk of harm in order to avoid greater harm, their actions may have been “justifiable” and thus not reckless.


Section 318 of the Act states that a person drives negligently if he or she “fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man [or woman] would have observed in all the circumstances of the case”.

In essence, this means that the accused drove in a way that fell so short of the standard of care required, and in a way that held such a high risk of death or serious injury, that it merits criminal punishment.

Intoxication and Drugs

Under this section, a person drives culpably if he or she drives “whilst so affected by alcohol [or drugs] as to be incapable of having proper control of the motor vehicle”.

What Actions Might Constitute Culpable Driving Causing Death?

The following acts could form the basis of a charge.

  • driving home drunk from the pub and hitting another vehicle, where the driver of that other vehicle dies;
  • driving after being awake for 17 hours straight, falling asleep at the wheel and hitting and killing a cyclist;
  • driving while texting on your mobile phone and hitting and killing a pedestrian.

What The Police Must Prove

To convict a person of culpable driving causing death, the prosecution must prove each of the following elements beyond a reasonable doubt:

  • they were driving a motor vehicle;
  • the driving was culpable; and
  • their culpable driving caused the death of another person.

Possible Defences For Culpable Driving Causing Death

Some possible defences that can be argued to a charge of culpable driving causing death are listed below.


The defence of necessity may succeed where the accused drove in the manner alleged only because of an emergency situation, such as fleeing a bushfire, and where their actions were justifiable in the circumstances.


The charge of culpable driving causing death will be defeated if the defence can raise reasonable doubt that the accused’s driving was what caused the victim’s death. This may be called into doubt if the victim was already injured when the accident occurred or if he or she suffered further injuries from another cause prior to dying.

Which Court Will Hear Your Matter?

Culpable driving is a strictly indictable offence and will be heard in the County Court of Victoria.

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

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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