dangerous and culpable driving

How about Section 318 of Victorian Crimes Act - culpable driving:

Any person who by the culpable driving of a
motor vehicle causes the death of another person
shall be guilty of an indictable offence and shall
be liable to level 3 imprisonment (20 years
maximum) or a level 3 fine or both.

For the purposes of subsection (1) a person drives
a motor vehicle culpably if he drives the motor
vehicle—
(a) recklessly, that is to say, if he 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 driving;
or
(b) negligently, that is to say, if he fails
unjustifiably and to a gross degree to observe
the standard of care which a reasonable man
would have observed in all the circumstances
of the case; or
(c) whilst under the influence of alcohol to such
an extent as to be incapable of having proper
control of the motor vehicle; or
(d) whilst under the influence of a drug to such
an extent as to be incapable of having proper
control of the motor vehicle.
(2A) Without limiting subsection (2)(b), negligence
within the meaning of that subsection may be
established by proving that—
(a) a person drove a motor vehicle when
fatigued to such an extent that he or she
knew, or ought to have known, that there
was an appreciable risk of him or her falling
asleep while driving or of losing control of
the vehicle; and
(b) by so driving the motor vehicle the person
failed 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.

In my experience, the juries have difficulties with the definition of
'negligence'.

Regards,

Brad.

 

No,

The reason was (in Victoria anyway) because there was no offence lower
than culpable driving if a death occurred. The hierarchy was careless
driving, drive in a manner dangerous, or culpable driving. Dangerous
driving causing death was introduced to target those instances where the
driving was a causative factor in the death, but was not so bad to be
criminally negligent or reckless.

Regards,

Brad.

 

I snipped (2A) (a) and (b) because the former is the 2004 amendment that
inserts fatigue as a form of negligence, and (2A) (b) is just a
technical clarification of the original (2) (b).

If a member of a jury has difficulty with 'negligence' in this context,
it may be the " ... the standard of care which a reasonable man
would have observed ..." bit. To a juror a reasonable man is himself.

 

I'm still not clear what any of this has to do with "intent" or how
intent is defined within such a legal definition of cupability.

I really do not understand where intent comes into it. Intent to do
*what*** ???

I'm still waiting for Zebee to come back to me about this. But
anyone else who can clarify this is welcome too.


Onya bike...

Gerry

 

Brad, see my reply to Andrew.

Onya bike...

Gerry

 

Yes it has to be defined in our jurisdiction before it becomes law.
No our lawmakers are not bound by any other jurisdiction.

I don't see your point... both of those were implied by what I said, and
neither of those points effect how vehicular manslaughter is defined
*shrug*.

G-S

 

Well there's intent and deed. The deed may occur without intent -

You can (for a crass example) feel a fart ready but decide to cough
nevertheless (driving while drunk).

1 You could get lucky and just cough get home, no fine.
2 You could get unlucky and cough, fart and get heard.get home but get
fined for drunk driving
3 Or you could cough, and you may shit yourself (get done for dd after
actually killing someone without meaning to).
4 Or you could deliberately shit yourself.

Either way the risk is prevalent in all 4 options, the bad outcome is in
2,3 and 4, but 'intent' is only there in case 4.

Erm. I hope that clarifies things somewhat.

 

I think Nev's point is that it's not defined because if you look at the
laws of Australia or the relevant state, singularly, referring only to
any 'reference' laws directly named in the laws themselves, the term
'vehicular manslaughter' has no meaning other than 2 consecutive words,
only one of which is likely to be 'defined' in said legislation.

Just because things with the same name exist overseas does not make the
overseas name 'correct' and generally accepted for use by the public as
having the foreign definition - eg "thong".

So although an Englishman in England may be able to be charged with
"vehicular manslaughter", nobody over here can because we don't know wtf
it *is*. You can only get them overseas.

 

I suspect you are correct as the law stands, which is why vehicular
manslaughter fills a gap as it can be (and is) classed as Misdemeanor
manslaughter in many jurisdictions.

I quote 1 example -:

Misdemeanor manslaughter

In the United States, this is a lesser version of felony murder and
covers a person who causes the death of another while committing a
misdemeanor — that is, a violation of law that does not rise to the
level of a felony. This may automatically lead to a conviction for the
homicide if the misdemeanor involved a law designed to protect human
life. Many violations of safety laws are infractions, meaning that a
person can be convicted regardless of mens rea.

*end quote*

So someone who was driving in a negligent manner (speeding, driving
without a licence, driving whilst intoxicated etc etc. Maybe even
driving with a child on their lap whilst speeding!) and who caused the
death of another(s) might well be easier convicted of that charge than
they would be of Culpable Driving.

The difference being the mens rea required for conviction.


G-S

 

I read the above as "had the intent to consciously and unjustifiably
disregard" etc etc.




G-S

 

Nonsense. The evidence obviously wasn't strong enough to eliminate what
the jury regarded as reasonable doubt or they would have all voted to
convict. [1]


G-S

[1] It may have been beyond reasonable doubt for you (or even I) but we
weren't the jurors.

 

Nope

I prefer to keep my explanations to areas where I can claim some training.
G-S

 

Doesn't help at all! Hope you don't think that my example ("... fart in
your grandmother's kitchen... " ) proves that fart analogies is the only
way to argue on aus.moto.

Following your analogy: you are drunk. Despite knowing this, you decide
to ride home. Your intent is identical in every case: disregard the law.
Whether you get home without incident, get pinged, wipe out a bunch of
innocent road-standers, or just wipe yourself out, your intent doesn't
change. Just your blameworthiness.

 

Well, yes, but I wouldn't give a rats arse whether he drove
dangerously "intentionally".

If he drove dangerously leading to death, intentionally or
"accidentally" he was, in my book, blameworthy of their death. i.e.
culpable driving causing death.

If it can be successfully argued that his driving was not to blame for
the deaths then he could be acquitted of "culpable driving causing
death."

If it can be successfully argued that he was not responsible for the
manner in which he drove, then he could get off on grounds of
diminished responsibility.

The only way I see intention being an issue is in its opposite i.e. if
he could show that he had no intention of driving in a dangerous
manner but that somehow, say mechanical failure, caused the car to
drive dangerously eg. a stuck accelerator.

Beyond that, I still fail to see that the cops have to prove any
intention at all.

*** Still waiting for a believable and authoritative explanation. ***


Onya bike...

Gerry

 

Begging your indulgence, your worship, but...
How does his blameworthiness change, and what changes it, and how
does intent feature in reducing his blameworthiness?


Onya bike...

Gerry

 

The intent comes from knowing what you are doing is wrong but doing it
anyway eg. street racing or driving drunk.

 

I never said it was law here or defined here, just that a commonly
accepted definition of what 'vehicular manslaughter' exists, and that if
it was introduced here it would be likely similar to the original
proposal for that law which is largely similar to the law with the same
name in other jurisdictions.

Or to paraphrase... the term vehicular manslaughter has a commonly
accepted definition.

I respectfully disagree. Until and unless a word in defined in
Australia all we *can* use are overseas definitions of that word.

Or are you claiming the word and the concept doesn't actually exist

I do know wft it is

I just don't know if what it is will be implemented here.



G-S

 

Well it seems the law does

I disagree. A momentary lapse of concentration resulting in an incident
causing death should in my world view (other things being equal) be
sentenced less harshly than a consistent intent to act like a fuckwit
whilst in a vehicle.



G-S

 

Both Nev's (I assume) and my take on it is we're looking at 'vehicular
manslaughter' as a legal entity within the confines of Australia.
Whether it can or does happen, has no bearing on whether a law defines
what the (or any) term means. If it isn't defined legally it doesn't
exist legally. I can't be charged with typing 'teh' instead of 'the' -
because legally such a thing is not a crime. It's also part of a larger
subset of 'crimes' such as misspelling.

Same as 'vehic manslaughter' is not a crime however the 'generally
accepted' items that are elements of it all fall under other categories
of crimes which are defined legislatively and you can be charged for.
The words exist but not the concept.

You may be arguing just to be difficult, I'm not sure but I fail to see
how you can refute the argument. I understand (and agree with) what
you're saying /ideologically/ but insofar as the laws are concerned
they're written down and it's not part of them.

 

more in line with community expectations.
Your happy with the sentences available?

Driving well over speed limit with kid on lap, probably pist, wipe out
not 1 but 6 people... **** off from the scene of the accident
abandoning his kids? Oh he feared for his life...