Dangerous Driving, Drive Manner Dangerous and Negligent Driving 1
Over the years I have had cause to act for drivers of trucks, cars and motorcycles who have been involved in serious traffic accidents where people have died or been seriously injured. I want to consider the criminal liability associated in a traffic accident.
Any accident involving a motor vehicle where someone is killed or injured can result in the following charges:
Dangerous driving cause death Max 10 years imprisonment
Aggravated Dangerous Driving cause death Max 14 Years imprisonment
Dangerous driving cause grievous bodily harm (Gbh) Max 7 years imprisonment
Aggravated Dangerous Driving cause Gbh Max 11 years imprisonment
Negligent driving cause death Max 18 months imprisonment
Negligent driving cause Gbh Max 9 months imprisonment
Drive manner dangerous
Negligent driving
Most people who have an accident where they are at fault experience at least the charge of negligent driving. Unfortunately unlike a minor car accident where driver and passenger are uninjured an accident on a motorcycle is more than likely to result in injury. If your pillion is injured you are at considerable risk of being charged. I have acted for clients who have had accidents where their pillions have had deep cuts, broken bones and even died and the rider has been charged, though after a protracted court case acquitted. In the case of death or serious injury on conviction there is the real possibility of a custodial implication. Generally, if there is a death and a question of fault exists the police are likely to charge and leave it to the courts to determine the matter.
The difficulty in these cases and the expense is the need for scientific evidence especially if there are no witnesses. One specific case I ran comes to mind. Late one evening a rider and pillion were riding out by the northern beaches. A taxi driver who was travelling in the opposite direction said he didn’t notice anything untoward in the rider's approach but heard it and as it had a noisy aftermarket exhaust it must have been going fast. He saw sparks in his rear vision mirror as the bike hit the embankment. The pillion was high sided into a tree. The rider’s body was smashed from top to bottom and how he survived the months of coma, hospitalisation and years of surgery and rehabilitation was a testament to his strength of character and determination.
Sadly his pillion died at the scene, the cause of the accident was uncertain but as a person had died he was charged. If convicted he would likely be incarcerated. Not only, was he recovering from catastrophic injuries, and the fact that his friend had died, he now had all the stress of a court case that could take at least a year to complete.
No one had seen the accident, the rider who had a head injury had no recollection of the event at all. The DPP who had pressure from the family and deep pockets as a government institution kept putting forward expert reports and theories, which had to be countered. In addition there were witness statements from people who had seen a bike doing a wheelie 10 kms from the crash site. On a road that has a lot of bikes using it, no one could identify "a" bike as "the" bike.
I got to the scene within hours of the accident and managed to have photos of the scene and debris left from the bike taken.
Various spurious arguments were raised by the prosecution:
1 Because the radius of the curve was such that a bike could go around the curve at significantly greater than the speed limit the rider must have been traveling faster than the hypothetical speed. Our experts assessed the maximum potential speed that the corner could be taken at as much less. Further the accident occurred before the corner.
They also hypothesized that a mark on the road was a yaw mark and therefore the bike was travelling at a certain speed. Again positively debunked by our expert. Eventually the best the prosecution could estimate was maybe 1km/h over the speed limit but the range was far less than the speed limit.
2 The police in attendance stood up what was left of the bike and clicked down through the gears then saying that it was in fourth gear and because the analogue tachometer was at 7000 it was traveling at a certain speed. This did not take into account that he had a reverse pattern gear shift and that analogue instruments can jump on impact and freeze.
3 The remains of the bike were held by police and on attendance at the station with an expert and a forensic examination of the clutch cable showed that the likelihood that on pulling in the clutch and changing gear it snapped and momentarily locked the rear wheel causing a loss of control and as the pillion sits higher than the rider with limited hold, high sided the pillion impacting the tree. Accordingly the accident may have been caused by sudden mechanical failure and not anything to do with the manner of riding.
4 The prosecution tried to argue that the bike had travelled off the road and up an embankment where the pillion was found because there was a black mark on a tree and the bike was black. As I had examined the area within hours and examined the embankment it was clear that the black mark on the tree was from a bush fire having charred the tree. Secondly they relied upon debris that appeared to be at the top of the embankment, which we established did not belong to the bike.
However every time we debunked the DPP theory of how the accident occurred they would get a new expert costing more money. We then ran a commital proceeding in the local court for a number of days prior to any District Court hearing and the Magistrate in the local court threw out the prosecution case, making scathing remarks against the prosecution and awarding costs.
The point I am making is early careful investigation is everything and jumping to simplistic assumptions are dangerous. If you wait until you get charged which can be months later the area may have changed. The road may have changed, surrounding shrubbery that may have obstructed your view may no longer be there, or alleged black marks on trees.
Secondly just because you lose control of a vehicle does not necessarily mean that you were driving in a manner dangerous or negligently.
The article as written is for your information and interest only. It is not intended to be comprehensive and does not constitute and must not be relied on as legal advice. Please be aware that every case is different and the matters I am raising may not be of specific relevance to your situation but may have a general application and you must seek specific advice tailored to your circumstances. I will also gladly talk to anyone on the phone if confused or want clarification.
Chris Kalpage
Kalpage and Co Solicitors
https://www.facebook.com/photo/?fbi...3wAq9okW-9peALIOQ78rhWR9FimRElIYg&__tn__=EH-R
Over the years I have had cause to act for drivers of trucks, cars and motorcycles who have been involved in serious traffic accidents where people have died or been seriously injured. I want to consider the criminal liability associated in a traffic accident.
Any accident involving a motor vehicle where someone is killed or injured can result in the following charges:
Dangerous driving cause death Max 10 years imprisonment
Aggravated Dangerous Driving cause death Max 14 Years imprisonment
Dangerous driving cause grievous bodily harm (Gbh) Max 7 years imprisonment
Aggravated Dangerous Driving cause Gbh Max 11 years imprisonment
Negligent driving cause death Max 18 months imprisonment
Negligent driving cause Gbh Max 9 months imprisonment
Drive manner dangerous
Negligent driving
Most people who have an accident where they are at fault experience at least the charge of negligent driving. Unfortunately unlike a minor car accident where driver and passenger are uninjured an accident on a motorcycle is more than likely to result in injury. If your pillion is injured you are at considerable risk of being charged. I have acted for clients who have had accidents where their pillions have had deep cuts, broken bones and even died and the rider has been charged, though after a protracted court case acquitted. In the case of death or serious injury on conviction there is the real possibility of a custodial implication. Generally, if there is a death and a question of fault exists the police are likely to charge and leave it to the courts to determine the matter.
The difficulty in these cases and the expense is the need for scientific evidence especially if there are no witnesses. One specific case I ran comes to mind. Late one evening a rider and pillion were riding out by the northern beaches. A taxi driver who was travelling in the opposite direction said he didn’t notice anything untoward in the rider's approach but heard it and as it had a noisy aftermarket exhaust it must have been going fast. He saw sparks in his rear vision mirror as the bike hit the embankment. The pillion was high sided into a tree. The rider’s body was smashed from top to bottom and how he survived the months of coma, hospitalisation and years of surgery and rehabilitation was a testament to his strength of character and determination.
Sadly his pillion died at the scene, the cause of the accident was uncertain but as a person had died he was charged. If convicted he would likely be incarcerated. Not only, was he recovering from catastrophic injuries, and the fact that his friend had died, he now had all the stress of a court case that could take at least a year to complete.
No one had seen the accident, the rider who had a head injury had no recollection of the event at all. The DPP who had pressure from the family and deep pockets as a government institution kept putting forward expert reports and theories, which had to be countered. In addition there were witness statements from people who had seen a bike doing a wheelie 10 kms from the crash site. On a road that has a lot of bikes using it, no one could identify "a" bike as "the" bike.
I got to the scene within hours of the accident and managed to have photos of the scene and debris left from the bike taken.
Various spurious arguments were raised by the prosecution:
1 Because the radius of the curve was such that a bike could go around the curve at significantly greater than the speed limit the rider must have been traveling faster than the hypothetical speed. Our experts assessed the maximum potential speed that the corner could be taken at as much less. Further the accident occurred before the corner.
They also hypothesized that a mark on the road was a yaw mark and therefore the bike was travelling at a certain speed. Again positively debunked by our expert. Eventually the best the prosecution could estimate was maybe 1km/h over the speed limit but the range was far less than the speed limit.
2 The police in attendance stood up what was left of the bike and clicked down through the gears then saying that it was in fourth gear and because the analogue tachometer was at 7000 it was traveling at a certain speed. This did not take into account that he had a reverse pattern gear shift and that analogue instruments can jump on impact and freeze.
3 The remains of the bike were held by police and on attendance at the station with an expert and a forensic examination of the clutch cable showed that the likelihood that on pulling in the clutch and changing gear it snapped and momentarily locked the rear wheel causing a loss of control and as the pillion sits higher than the rider with limited hold, high sided the pillion impacting the tree. Accordingly the accident may have been caused by sudden mechanical failure and not anything to do with the manner of riding.
4 The prosecution tried to argue that the bike had travelled off the road and up an embankment where the pillion was found because there was a black mark on a tree and the bike was black. As I had examined the area within hours and examined the embankment it was clear that the black mark on the tree was from a bush fire having charred the tree. Secondly they relied upon debris that appeared to be at the top of the embankment, which we established did not belong to the bike.
However every time we debunked the DPP theory of how the accident occurred they would get a new expert costing more money. We then ran a commital proceeding in the local court for a number of days prior to any District Court hearing and the Magistrate in the local court threw out the prosecution case, making scathing remarks against the prosecution and awarding costs.
The point I am making is early careful investigation is everything and jumping to simplistic assumptions are dangerous. If you wait until you get charged which can be months later the area may have changed. The road may have changed, surrounding shrubbery that may have obstructed your view may no longer be there, or alleged black marks on trees.
Secondly just because you lose control of a vehicle does not necessarily mean that you were driving in a manner dangerous or negligently.
The article as written is for your information and interest only. It is not intended to be comprehensive and does not constitute and must not be relied on as legal advice. Please be aware that every case is different and the matters I am raising may not be of specific relevance to your situation but may have a general application and you must seek specific advice tailored to your circumstances. I will also gladly talk to anyone on the phone if confused or want clarification.
Chris Kalpage
Kalpage and Co Solicitors
https://www.facebook.com/photo/?fbi...3wAq9okW-9peALIOQ78rhWR9FimRElIYg&__tn__=EH-R
