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Endangering Life​

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The prosecution must prove that a hypothetical reasonable person, taking the same actions as you, would have realised that his/her conduct would have either placed another in danger of death or may have placed another in danger of death.[1]

There is no requirement that a person was actually put in danger.  Proof that there was a potential to place a person in danger of death will suffice.[2]

The Intent

The prosecution must prove you intended to engage in the conduct alleged.[3]

The prosecution must prove that you foresaw that an ‘appreciable risk of death’ was a probable consequence of your conduct.[4]  This does not require that you foresaw the conduct would probably cause death, just the appreciable risk of it. 

For example, the prosecution may prove that you foresaw that in smoking while driving, some burning ash may cause a burn to your seat.  If you did not foresee that the seat burning would cause you to drive onto the wrong side of the road and into oncoming traffic then they have not proven their case.[5]  Even if in hindsight you did appreciate the risk, that is not sufficient for the prosecution to rely on.[6]

The Level of Risk

The level of risk must be appreciable which means more than a remote or mere possibility of death.[7] 

Penalty

This offence is known as an indictable offence.  That means you have a right to have the case considered by a Judge and Jury as opposed to a Magistrate in the Magistrates Court.  The maximum penalty is 10 years jail.  The Magistrates Court however is restrained to a maximum of 2 years on a single offence or up to 5 years on multiple offences.

There is no mandatory licence loss but upon being found guilty of this offence you could expect your licence to be disqualified for a lengthy period. A careful plea would attempt to minimise any period off the road.

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CONDUCT ENDANGERING PERSONS

The offence of conduct endangering persons is found in section 23 of the Crimes Act 1958.

The risk and intent must relate to serious injury

The offence is very similar to conduct endangering life, however the prosecution must prove that your conduct caused an appreciable risk of serious injury as opposed to death.  They must also prove you intended the conduct with the foresight that an ‘appreciable risk’ of a serious injury was a probable consequence of the conduct.

What is a serious injury

Serious injury is defined in section 15 of the Crimes Act 1958 as:

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        (a)     an injury (including the cumulative effect of more than one injury) that—

              (i)     endangers life; or

              (ii)     is substantial and protracted; or

        (b)     the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other harm

Penalty

The penalty is a maximum of 5 years jail and as is the case with conduct endangering life, there is no mandatory licence loss however a lengthy period off the road is not uncommon.  As with conduct endangering life, this is considered a serious offence.  It is important to seek legal representation to defend this charge, negotiate less serious charges or conduct a well-prepared plea in mitigation to minimise any penalty.

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[1] R v Nuri [1990] VR 641.

[2] R v Abdul-Rasool (2008) 18 VR 586.

[3] R v Marijancevic (2009) 22 VR 576.

[4] R v Nuri [1990] VR 641.

[5] Filmer v Barclay [1994] 2 VR 269.

[6] R v Wilson [2005] VSCA 78.

[7] R v Wilson [2005} VSCA 78.