In culpable driving cases based on fatigue, the Crown must prove that the accused continued to drive while aware or ought to have been aware of a significant risk of falling asleep or losing control, and the trial judge must identify this specific conduct for the jury rather than leaving them at large on the question of whether driving while 'fatigued' constitutes gross negligence. The defence of honest and reasonable mistake available under Jiminez v R for dangerous driving charges has no application to charges of culpable driving based on gross negligence under s 318(2)(b) of the Crimes Act 1958 (Vic). Where the accused gives an explanation of the collision that is wholly at odds with the Crown case, the jury must be directed that if the explanation is a reasonable possibility, the accused is entitled to the benefit of the doubt.
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