The criminal liability associated in a traffic accident is no laughing matter. If you are found at fault, the following are some of the likely charges you may be looking at:
- 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
Dangerous driving and negligent driving causing death or grievous bodily harm
For motorcyclists, unlike car drivers and passengers any accident involving a rider and pillion is likely to have more serious consequences and a greater likelihood of a criminal charge.
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 on occasion 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 comes to mind where 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 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 Director of Public Prosecutions 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 kilometres from the crash site. On a road that has a lot of bikes using it, no one could identify “a” bike as “the” bike.
We got photos taken within hours of the incident showing obviously the scene itself but also the debris left from the bike taken.In this case, various spurious arguments were raised by the prosecution:
- Because the radius of the curve was such that a motorbike 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.
- 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.
- 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 her impacting the tree. Accordingly the accident may have been caused by sudden mechanical failure and not anything to do with the manner of riding.
- 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 the theory of how the accident occurred would by debunked, the DPP would get a new expert costing more money. Finally a commital proceeding in the local court was run 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.
In light of the above, we always recommend early careful investigation is extremely beneficial when dealing with complex events and/or serious charges. 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. Further just because you lose control of your bike does not necessarily mean that you were riding in a manner dangerous or negligently. Even if one is travelling over the speed limit (yes actually speeding) it does not necessarily mean that you were negligent or driving in a manner dangerous.
Finally don’t think it can’t happen to you no matter how careful you are. Our firm has defended so many people who hopped into their car, or on their bike that morning never for one moment thinking it would happen to them.
Negligent driving charged resulting from a motor vehicle accident
In the previous section we addressed the issues arising out of dangerous driving and negligent driving causing death or grievous bodily harm. Now let’s touch on issues, which a larger proportion of riders and drivers face. That involves the issue of a charge of negligent driving resulting from an MVA.
In essence the concept of negligence, which applies to all permutations of the charge including death or GBH, is whether the person did not drive in a manner that a reasonable prudent driver would have driven in, considering all the circumstances.
Often if police are called to a single vehicle accident where the bike has come down there is a risk that the rider will be charged with negligent driving. Two cases that come to mind:
The point to consider from these matters is that a mere accident does not automatically mean that the rider or driver was negligent in their riding of the bike or driving. The prosecution needs to establish that you were driving without the standard of care and attention reasonably expected of the ordinary prudent driver.
Even in cases where you have run into the back of a vehicle that has suddenly stopped it does not mean that your manner of driving was negligent. Another example is a case for a retired highway patrol officer, who trained motorcycle highway patrol officers and had been a rider of significant experience. He had to apply the brakes in an emergency situation but had to do so in a sudden change of the road condition and ran into the back of a car and was acquitted at hearing. So if you have to brake suddenly and do it on a patch of diesel causing you to run into the car in front that may not constitute negligence. The court has to take into account all the circumstances of the case as embodied in the legislation, a part of which is printed below:
ROAD TRANSPORT ACT 2013 – SECT 117
“Negligent, furious or reckless driving
117 Negligent, furious or reckless driving
(cf STM Act, s 42)
(1) A person must not drive a motor vehicle on a road negligently
(3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following:
(a) the nature, condition and use of the road on which the offence is alleged to have been committed,
(b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road,
(c) any obstructions or hazards on the road (including, for example, broken down or crashed vehicles, fallen loads and accident or emergency scenes). ”
It relates to the specific circumstances of the particular incident and this is one situation where truly every case is different and no two situations are alike, requiring careful analysis. So don’t assess your case based upon someone you know who had a similar situation and got a certain result because you could be very wrong.
Speed Dangerous and Manner Dangerous arising out of a speeding charge
In the last two sections we covered the issues arising out of dangerous driving, negligent driving causing death or grievous bodily harm and a charge of negligent driving resulting from an MVA. Now let’s address the issues of charges of Speed Dangerous and Manner Dangerous arising out of a speeding charge. We are often approached by drivers or riders who have been charged with an over 45km/h speed and have also been given a court attendance notice for Drive manner/speed dangerous. The basis of the charge is as the title implies the manner and/or speed involved in the driving, but sometimes it is purely based on the speed itself, which on careful assessment may not be objectively dangerous. Similarly the manner of driving on cross examination may not be able to be sustained.
The test as to whether someone was driving in a manner dangerous focuses on the potential danger, rather than whether the actual danger was realised or not. If it caused the potential for danger to the public, that is sufficient and it does not have to be actual. For instance high speed in a residential area may satisfy a high potential for danger compared to high speed on a freeway in the early hours of the morning.
The problem in a charge like this is that the penalties can be quite severe on conviction, which can include a period of incarceration and a period of disqualification being an unlimited maximum, an automatic of 3 years, to a minimum of 1 year. So as you can see the stakes are high. The other issue is that your licence and potentially plates can be taken on the spot which for some of my clients has resulted in them being stranded in the middle of nowhere.
These cases are serious and we will often start with an investigation of the in car video (ICV) to view what the officers could see. Often what they could see is quite different to what they believed they could see. For instance hearing a bike with an after market exhaust that seems loud and their belief accordingly that it was going fast. Any witness in any criminal case can be influenced by their bias and make assumptions based on their particular bias in what they believe they saw. It is only when you see the ICV that you may get an idea as to what the officer actually saw and what is the filling in of gaps based on their bias.
Often the if case is based on excessive speed charge the rider or driver may be charged with both an over 45km/h speed and drive manner/ speed dangerous. It is sometime prudent to defend both charges to try and get the police to agree to withdraw the charge of manner/speed dangerous on accepting a guilty plea to an over 45km/h speed – a far less serious offence with far less severe consequences. A case for a driver in a remote country location, he was pulled over by police using a lidar with an allegation of a speed over 45 and speed dangerous. His licence was confiscated on the spot and charged by field court attendance notice and left in the middle of nowhere. A defence was run based on the argument that the location and time of day combined with traffic conditions meant it wasn’t by definition dangerous. The prosecution agreed to withdraw the speed dangerous at hearing on a plea of guilty to the over 45 speed which was the difference between a potential disqualification of 6 months as opposed to 3 years. In a large number of cases, a strong defence often involving scientific evidence and a compromise of the above nature has been reached where it is clear that the over 45 speed is established.
As previously referred to the court has to take into account all the circumstances of the case, including the nature, condition and use of the road, the amount of traffic, and any obstructions or hazards on the road. When all this is raised by the defence and taken into consideration by the prosecution it may make sustaining a charge of manner/speed dangerous untenable.
Dangerous driving Cause Death or Grievous Bodily Harm ([GBH)
When you consider the potential penalties are 7 to 10 years in jail, there is good reason for caution when involved in a dangerous driving Cause Death or Grievous Bodily Harm ([GBH) MVA matter.
In criminal cases, there is an essential premise of a right to silence that is qualified to some extent by the police issuing a form of demand. But in relation to traffic accidents where someone is injured or killed, there is a more concerning element that affects your right to silence.
Let’s assume you’re riding a motorbike or driving a car and an accident occurs where another road user, pillion or pedestrian is killed or injured. You could be arrested and taken to the Police station or required to attend the Police station. At the station, you cannot rely on your absolute right to silence as legislation requires you to give a version of the accident.
It is important to know that this version of events is limited to what happened. For example ‘I was traveling along the road and a pedestrian came from my right and I hit him’. That is a factual version of the accident. You do not have to go into any further detail such as your speed, etc. At the conclusion of the version, the police will wish to ask you questions for which they will have to administer a caution, in effect advising that you do not need to answer the subsequent questions.
When stressed, people don’t understand this distinction and sometimes don’t restrict themselves to a version in the first instance, or continue to talk once cautioned, potentially to their detriment.
