Negligent
Driving in NSW
causing grievous bodily harm
or death
s.42(1) Road Transport (Safety and Traffic Management) Act 1999 NSW
A person
who drives a motor vehicle negligently in NSW is guilty of an offence:
Section 42
Negligent, furious or reckless driving
(1)
A person must not drive a motor vehicle negligently on a road or road
related area.
Maximum
penalty:
(a)
if the driving occasions death - 30 penalty units or imprisonment for
18 months or both (in the case of a first offence) or 50 penalty units
or imprisonment for 2 years or both (in the case of a second or
subsequent offence), or
(b)
if the driving occasions grievous bodily harm - 20 penalty units or
imprisonment for 9 months or both (in the case of a first offence) or
30 penalty units or imprisonment for 12 months or both (in the case of
a second or subsequent offence), or
(c)
if the driving does not occasion death or grievous bodily harm - 10
penalty units.
See: http://www.austlii.edu.au/au/legis/nsw/consol_act/rtatma1999412/s42.html for
the full text of s.42 RT(S&TM) Act 1999.
This offence is committed by anyone who drives a motor vehicle
negligently.
The offence is committed even if there is no accident or collision, no
injury or death, or
no interference with other traffic (see subsection 3). The police do
not
need to adduce any evidence of an injury or death in order to gain a
conviction for this offence: see DPP(NSW)
v Yeo and Anor [2008] NSWSC 953 at paragraph 30. Evidence of injury or death is relevant only when the prosecution is
seeking
the higher penalties that flow from those outcomes.
The essential elements
of a s.42(1) offence are
that the accused drove a motor vehicle on a road, or a road related
area,
in a manner that was negligent.
"Negligent driving is
established
where it is proved beyond reasonable doubt that the accused person
drove a motor vehicle in a manner involving a departure from the
standard of care for other users of the road to be expected of the
ordinary prudent driver in the circumstances." R v
Buttsworth (1983) 1 NSWLR 658 at 672.
In
the case of Mitchell
v R [2009] NSWCCA 95 the NSW Court of Appeal heard an appeal
against a sentence that had been imposed on a driver in respect of two
charges laid under s.42 RT(S&TM)
Act. The accused was the driver of a truck
that collided with a parked vehicle. Two persons standing next to the
vehicle were hit
- one died and the other was seriously injured.
The
elements of each of the two charges were identical. Particulars of the first charge
alleged that the
offence resulted in a death, and the particulars of the second charge
alleged that the offence resulted in grievous bodily harm.
In
Mitchell's case the driver was
convicted of two counts of driving a motor vehicle negligently on a
road and he was sentenced seperately for each
count. In that case a single act of
negligent driving (driving too fast in a fog) caused the accident. A
single act of negligent driving resulted in a single accident with
two victims. Where there is one act of negligent driving there is one
offence only against s.42 and a driver ought not be found guilty of two
offences merely because two people are injured.
The driver in Mitchell's case
originally appealed against conviction but for unstated reasons he
abandonned that ground of his appeal. In my opinion, he would
have won an appeal against conviction for one count had he pursued it.
Instead, he pursued his appeal against the length of his licence loss
period only and he did not complain about suffering two
convictions. So the Court of Appeal was never asked to decide
-
and it did not address - whether or not it was correct for the
appellant to be
found guilty of two s.42 charges when there was only one act of
negligent driving.
I
have represented people charged with
two sequences or counts of negligent driving under s.42(1) RT(S&TM)
Act when there is a single act of negligent driving involved.
The
uncontested police evidence was that
a single act of negligent driving resulted in the two persons
being
injured. At the hearing of the
plea I argued that my client should not be found guilty of two offences
under s.42(1). The accused pleaded guilty to the allegations made in each
charge
and then asked the court to strikeout one of the charges on the
basis that they were identical and duplicitous.
Magistrates are unlikely to agree that the number of victims goes to
penalty only. One
Magistrate said he did not agree that the charges were duplicitous. He
said two charges should be laid when there are two victims.
He asked "that means if two people are killed then you can lay only
one count of culpable driving?"!
A culpable driving charge is laid
under s.52A
Crimes Act
which is quite different to s.42(1) RT(S&TM) Act. Culpable
driving
requires an act of dangerous driving
causing a person's death. A single death is an essential element of that
offence. Multiple deaths can not be joined into a single charge under
s.52A because that would be bad for duplicity - see Johnson
v. Miller.
Secondly, for a charge laid under s.42(1) RT(S&TM) Act, the
elements of the offence remain exactly the same regardless
whether an act of negligent driving causes multiple
deaths or a single death or no deaths or injuries. The only thing that
changes if there is a death are
the particulars which relate to the question of
penalty – not to the question of guilt.
Culpable
driving is an indictable offence
that is heard before a jury, whereas negligent driving is a summary
offence that is heard and determined by a court without a jury. For the
purpose of determining guilt in a negligent driving case the Magistrate
performs the function of the jury and determines whether the
prosecution has proved beyond reasonable doubt each of the elements of
the offence. If the charge is found proved the Magistrate then performs
the function of a judge in passing sentence, and for that purpose the
court can then hear evidence in respect of sentence. It can hear
evidence from the accused in respect of mitigation of penalty and
evidence from the prosecution in respect of aggravation of penalty. It
is at this point of the case that the court will consider whether there
is sufficient
evidence of any death or grievous bodily harm.
Typically, the prosecution leads evidence of
the
injuries or deaths occasioned by the driving during the hearing prior
to judgment. But there is no reason why evidence of injuries and/or
death can not
be alleged - or challenged - at the sentencing
stage after a finding of guilt has been made.
An accused person is
entitled to decline to lead any evidence in defence of a charge. They can require the prosecution to prove every element of the
offence without anyone saying a word in their defence. The accused can sit silent during the hearing and hope that
the prosecution fails to prove, for example, that he or she was the driver of the
vehicle at
the time of the accident, or fail to prove that the vehicle came within
the definition of "motor vehicle". If that strategy fails and the charge
is found proved
against the accused. If
the charge is found proved the trial stage is complete and the case moves to the sentencing stage. Then the accused has the
right to call evidence on the issue of
penalty. He or she is entitled to get in the witness box
and give evidence to dispute any allegation that the victim suffered
injury in the accident, or dispute that the death was caused by the
accident. In the
event of dispute,
the prosecution carries the burden of proving beyond reasonable
doubt the existence and causation
of one or more deaths and/or one or more victims of grievous bodily
harm.
In
some cases, it might be appropriate for counsel to object to any
evidence of injury or death being alleged against the accused prior to any finding
of guilt being made. Police
evidence of injury or death is irrelevant to the proof of the charge
and if admitted prior to
judgment could
be admitted unfairly against the accused.
Such evidence could, in some cases, be prejudicial to the
accused especially if issue is going to be taken with those allegations
during the sentencing stage of the case - should it come to that.
It might be impossible for an accused to exercise his right
to
silence during the hearing of the charges while at the same time want
to dispute allegations raised during the hearing that he caused a death
or caused grievous bodily harm. If the accused wants to dispute any
aspect of the alleged injury or death then the only fair time to raise
those allegations is after judgment so the accused's right to remain
silent during the hearing is not compromised. Otherwise the allegations
risk being admitted into evidence at a time when the accused can not
refute them. This might prejudice the interests of the
accused
by creating bias in the mind of the magistrate. Where, for
example, the prosecution evidence is that the accused collided with
another vehicle after failing to give way at an intersection it is quite simple for the police to
say nothing about the human consequences of the collision until after
judgment is received.
Because the court is not required to hear any evidence about any
injury
or death until after judgment is delivered, it is impossible for any
evidence about injuries or deaths to turn a single count of negligent
driving into multiple counts of negligent driving.
The police are not required to allege in the charge any matter
that goes to penalty only. The matters that go to penalty are not
elements of the offence. In my
opinion, the police could gain a conviction even if they don't mention anything in the charge about the
victim suffering grievous bodily harm. The particulars of injury do not
form part of the charge and on one view they should not even be there.
They should be provided to the accused separately
to the charge.
For other offences, e.g. drink
driving,
where penalties increase if a person has prior convictions or has a particular type of licence or is of a particular age, the
existence of those matters which go to penalty are never alleged in the charge. The
prior convictions are alleged after the accused is found guilty of the
offence and the accused can take issue with any alleged priors after
being found guilty. Likewise, under s.42(1) a person can plead guilty
to the offence
and then during the sentencing process take issue with the injuries
alleged to have resulted from the accident. If there is disagreement as to
whether a death or
injury was caused by the negligence of the accused, there will
be a hearing on that aspect only.
No matter how many persons are injured or killed
in an accident, the
summary
of the offence - the "Full Facts" - will remain
exactly the same and the penalty is likely to
be exactly the same whether there are multiple charges or a single
charge. However, that does not mean a defendant should
capitulate and plead guilty to two serious charges and get two
sequences on their driving or criminal history when only one should be
there. There is a significant disadvantage to a person having multiple
prior convictions for this offence on their record when they should
have only one.
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