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.

Responsibility for dangerous driving

The offence of dangerous driving is carefully analysed in R v Roy, 2012 SCC 26 (1 June 2012), where the appellant had been convicted of dangerous driving causing death. He had pulled out from a stop sign into the path of an oncoming vehicle. There was thickening fog and visibility was poor.

Cromwell J, for the Court, observed [1]:

“Dangerous driving causing death is a serious criminal offence punishable by up to 14 years in prison. Like all criminal offences, it consists of two components: prohibited conduct — operating a motor vehicle in a dangerous manner resulting in death — and a required degree of fault — a marked departure from the standard of care that a reasonable person would observe in all the circumstances. The fault component is critical, as it ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction. While a mere departure from the standard of care justifies imposing civil liability, only a marked departure justifies the fault requirement for this serious criminal offence.”

On the reach of the criminal law, he continued:

“[2] Defining and applying this fault element is important, but also challenging, given the inherently dangerous nature of driving. Even simple carelessness may result in tragic consequences which may tempt judges and juries to unduly extend the reach of the criminal law to those responsible. Yet, as the Court put in R. v. Beatty, 2008 SCC 5 (CanLII), 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 34, “If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy.” Giving careful attention to the fault element of the offence is essential if we are to avoid making criminals out of the merely careless.”

On 25 February 2008 I discussed Beatty and its various judicial analyses of the ingredients of dangerous driving. A minority approach in that case was to use mens rea to assist in determining whether there was an actus reus, which indeed seems conventional (actus non facit reum nisi mens sit rea, or words to that effect), but it ignores the first requirement which is an act that causes harm. A level of bad conduct must exist before it can come within the reach of the criminal law. Otherwise, outwardly normal driving would be criminally dangerous if the driver’s state of mind was a marked departure from the standard of care expected of drivers. In Beatty all judges agreed that the acquittal should be restored, but their reasoning was divergent. McLachlin CJ, Binnie and LeBel JJ held that a momentary crossing of the centre line was not an actus reus of dangerous driving. Charron, Bastarache, Deschamps, Abella and Rothstein JJ held – correctly I think – that it was. All judges agreed there was no mens rea as there was only a momentary lapse of attention.

So the Court’s attention in Roy was on the sensitive issue of actus reus. It is not, said the Court, the consequences (collision and death) that determine whether there was an actus reus, but the quality of the driving itself [34]:

“In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, “The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving” (emphasis added). A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.”

Personally I would take the consequences of the driving as relevant to whether there was an actus reus: what was the harm? Not just pulling out from a stop sign. Hitting another vehicle was relevant too. Be that as it may, the Court continued by reasoning that if there is an actus reus, attention turns to whether there is a fault element or mens rea:

“[36] The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the issue by asking two questions. The first is whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.”

The “marked departure” requirement serves to separate criminal from civil responsibility. Momentary lapses of attention can occur in good drivers and in appropriate circumstances may give rise to civil liability or to convictions for careless driving [37]. As established in Beatty and cited by the Court in Roy [38]:

“The marked departure from the standard expected of a reasonable person in the same circumstances — a modified objective standard — is the minimum fault requirement. The modified objective standard means that, while the reasonable person is placed in the accused’s circumstances, evidence of the accused’s personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused’s incapacity to appreciate or to avoid the risk (para. 40). Of course, proof of subjective mens rea — that is, deliberately dangerous driving — would support a conviction for dangerous driving, but proof of that is not required (Charron J., at para. 47; see also McLachlin C.J., at paras. 74-75, and Fish J., at para. 86).”

And now for the tricky point, contentious in Beatty: when can an inference of mens rea be drawn from the actus reus? The Court gave this answer [42]:

“Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88). In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.”

The trouble with this approach is that it is perfectly normal for the law to hold a person responsible for an intended act that causes harm, and intention is usually inferred from the conscious performance of an act. There is no such thing as driving that is merely “simply dangerous” because by definition dangerous driving is driving that is a marked departure from the standard of a reasonable driver. This imagined “simply dangerous” driving should not be immune from the usual approach to determining intention and responsibility, and “on its own” it should support an inference that it was intended. The Court acknowledged [42, above] that “simply dangerous” driving is an actus reus. It is important to remember we are only talking about the drawing of an inference of mens rea, and in the circumstances of a particular case there may be facts giving rise to competing inferences or facts that strengthen the inference of mens rea.

The Court in Roy was concerned to avoid extending the reach of the criminal law beyond what was appropriate in view of the law’s purposes. It appropriately set a high level for the required harm (the actus reus) but then needlessly constrained the process of inferring the existence of the mental requirements for criminal responsibility. In Roy the trial judge had inferred mens rea from the fact that the driving was objectively dangerous, and the Supreme Court held that that was wrong [44]. Given the thickening fog, the stop sign, the poor visibility and the oncoming traffic, the Court concluded [51]:

” … While the appellant’s act of driving out from the stop sign was apparently a voluntary act, there was no evidence to support the conclusion that the appellant was in fact aware of the risk he was creating in doing so and deliberately chose to run that risk … .”

This seems to mean that the evidence suggested that the appellant had been well aware of the risk but had simply, and excusably, misjudged the position and speed of the oncoming vehicle. He knew there was a risk but he did not correctly measure the level of risk. The Court’s assessment of the facts was [55]:

” … on any realistic scenario consistent with the evidence, the time between visibility and impact would be only a few seconds. In my view, the appellant’s decision to pull onto the highway is consistent with simple misjudgment of speed and distance in difficult conditions and poor visibility. The record here discloses a single and momentary error in judgment with tragic consequences. It does not support a reasonable inference that the appellant displayed a marked departure from the standard of care expected of a reasonable person in the same circumstances so as to justify conviction for the serious criminal offence of dangerous driving causing death.”

Yes indeed, the defendant was not guilty because of absence of mens rea. I think there was an actus reus, just as there really was one in Beatty: pulling out from a stop sign and hitting an oncoming vehicle is a dangerous act, just as crossing the centre line while driving and hitting a car on the other side of the road is a dangerous act, but in each case the absence of mens rea supported acquittal. There was not the degree of inattention required in the circumstances to support a finding of sufficient fault for attribution of criminal responsibility.

Criminal responsibility, insanity, diminished responsibility and the role of the common law

The criteria for holding a person (D) responsible in criminal law for a particular harm emerge from moral decisions. These criteria are manifest as statutory laws and as judicially created common laws. For example, D’s acts must be voluntary. They must cause the relevant harm. There must be no circumstance of justification or excuse.

The recent Supreme Court of Canada case Maybin v R, 2010 SCC 24 noted here, highlighted the moral basis for attribution of a sufficient causal connection between D’s acts and the harm. The Privy Council has recently referred to the moral dimension of diminished responsibility: Daniel v The State (Trinidad and Tobago) [2012] UKPC 15 at [37]-[38].

The moral dimension is often recognisable by a requirement for reasonableness. Self-defence justifies killing, or any other form of violence, where it is reasonable for D to cause the harm in the circumstances as he believed them to be. This almost universal formulation of self-defence reflects its common law origins. The common law reflects the customs of the people. Reasonable conduct should be lawful because it is perceived as right.

Is the common law merely residual, ever-diminishing as statute advances? Or is the common law a potentially powerful source of justice? It might seem from the High Court of Australia decision in PGA v The Queen, discussed here recently, that the common law perpetually withers, although that would  – or should – be a misconception. Judges deal with the requirements of justice in particular cases, and with each case there is potential for development of the common law. This should be as true for defences as it is for any other developments that justice requires. By “justice” I mean here the judicially perceived sense of what the community regards as right. For recognition of this ability to develop new defences, see R v Kingston[1994] 3 WLR 519, at 536 (although in R v Cargill [1995] 3 NZLR 263, (1995) 13 CRNZ 291(CA) I was unable to persuade the Court to recognise a new defence of reasonable demand in relation to a charge of blackmail; that development was subsequently made by legislation: Crimes Act 1961, s 237(2)).

Parliament tends to limit defences and to create new offences. It seems to be engaged in extending the scope of acts for which a person can be held criminally responsible. Whether that legislative activity really reflects community perceptions of what is right can be a controversial question. But the important point is that if the courts are perceived by Parliament to be going wrong, legislation can correct that error. Whatever the common law might say, it is trumped by legislation. This is why courts should not be shy about developing the common law.

Daniel, above, prompts us to think about whether a defence of diminished responsibility should be developed at common law where legislation is silent on that. A defence of insanity will not cover all the states of mind that should negate criminal responsibility. The varieties of what in a loose sense may be called mental disorder seem extensive, as anyone who has glanced at the Diagnostic and Statistical Manual (4th ed) can see. Some of them, as Daniel illustrates, are states of mind that, if established at trial, should lead to acquittal. A court should be allowed to decide whether in a particular case mental abnormality should attract liability. This is what the court in Norway is currently doing, but under the guise of deciding the question of sanity.

An overview of judicial response to mental deficiencies in the context of the (now, former) statutory partial defence of provocation in New Zealand illustrates how moves from absolute rejection to accommodation can be made. In R v McGregor [1961] NZLR 1069 (CA) the Court declined to extend the meaning of provocation in the absence of statutory authority. Some withdrawal from this absolute position is evident in R v McCarthy [1992] 2 NZLR 550, (1992) 8 CRNZ 58 (CA). A variety of mental weaknesses have been accepted as relevant to whether D had in a non-culpable sense lost his self-control: R v Taaka [1982] 2 NZLR 198 (CA) obsessive compulsive personality, R v Pita (1989) 4 CRNZ 660 (CA) aversion to violence, R v Foreman 18/2/92, CA254/91 active schizophrenic process, R v Oakes [1995] 2 NZLR 673 (CA) battered woman’s syndrome, R v Timoti [2005] 1 NZLR 466, (2004) 21 CRNZ 90 (CA) paranoid personality disorder.

Does abolition of provocation as a partial defence to murder mean that none of these factors can have any relevance to the attribution of criminal responsibility generally? I think not. But even on a narrow view that they could only be relevant to whether intention or recklessness, voluntariness or causation had been proved, there is sufficient flexibility in the mysteries of fact-finding for morality to have an influence.