Cause Death and Driving Offences in South Australia

By James Cobiac


There are a variety of driving offences available under South Australian criminal law. The more serious of these offences involve causing death by way of culpably negligent or reckless driving, or driving at excessive speed in a manner dangerous to another person causing death. It is crucial to seek only legal advice if you have been charged with one of these offences. They carry heavy maximum sentences and are prosecuted vigorously.

There is a difference between culpable negligence, recklessness, and driving at speed in a manner dangerous to another person. Each entails a legal test that must be proved beyond reasonable doubt by the Crown. Culpable negligence requires the Crown to prove that the defendant’s driving demonstrated a gross departure from the standard of care expected of ordinary drivers. The concept of negligence is normally reserved for civil matters and as such the type of negligence required to constitute culpable negligence is significantly higher where the criminal law is concerned. A gross departure from the rules of the road, factoring in all the circumstances of the act or omission alleged, needs to be made out by the prosecution before culpable negligence can be established beyond reasonable doubt. Culpable negligence also differs from more common tests of criminal responsibility because it is concerns an objective test that asks: what would a reasonable person in the position of the defendant have done and did the defendant’s driving fall grossly short of that standard.

Reckless driving requires the prosecution establish the defendant was aware of the risks their driving gave rise to, but opted to continue driving regardless of those risks. It requires the prosecution establish the defendant actually contemplated the risks and chose to proceed with the conduct anyway. It is more difficult to prove because of the subjective nature of the test compared to culpable negligence.

The third type of charge is causing death with a vehicle due to driving at excessive speed in a manner dangerous to any other person. Like the test of culpable negligence, whether speed is excessive in a dangerous manner is an objective test. The prosecution must establish beyond reasonable doubt that with regard to all the circumstances the driver grossly departed from the rules of the road and created a severe and unwarranted risk to the lives of other people. Despite similarities to culpable negligence the law continues to differentiate between the two.

A failure of the prosecution to establish either culpable negligence, recklessness, or excessive speed means the charges will fail. The prosecution must also be able to prove, as one would expect, it was the defendant who was actually driving the vehicle at the time of the offence.

If the manner of the driving is proven, the prosecution must also establish beyond reasonable doubt that the culpably negligent, or reckless driving, or excessive speeding caused the victim’s death. It may be that despite the manner of driving the resulting death was the result of an entirely different cause, or would have occurred regardless of how the defendant drove. It is important to note the cause need only be a substantial cause, it does not need to proved to be the sole cause.

If you have been charged with driving offences it is important to consult a lawyer as soon as possible. Culshaw Miller Criminal Lawyers are available 24 hours a day to provide advice or attendance. Call 0418 421 153 or to book an appointment you can contact our offices on (08) 8464 0033.