Trial judges in Victoria should no longer direct juries that culpable driving causing death by gross negligence under s 318(2)(b) requires conduct that 'merits criminal punishment'. The De'Zilwa formulation continues to apply with the excision of that requirement. Juries should instead be directed that 'gross' conveys negligence of a high order involving a great falling short of the standard of care and a high risk of death or serious injury, and comparison with civil negligence may assist. The direction that the concept of 'meriting criminal punishment' has no place in directions on culpable driving flows necessarily from King v The Queen's binding holding that it has no place in directions on dangerous driving under s 319, because retaining it for the principal offence while excluding it from the statutory alternative would create an unacceptable risk of inconsistency.
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