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QLD An Interesting Judgement

Discussion in 'Politics, Laws, Government & Insurance' started by Fractalz, May 16, 2013.

  1. A report on the outcome of a recent court case in Mackay Qld.


    a couple of snippits >>>
    "This could not be described reasonably as one of a momentary lapse of concentration," Judge Jones said. "(The motorcycle) should have been seen."
    "There can be no doubt that had you been paying proper attention, that accident wouldn't have occurred," Judge Jones said. "I've decided to adopt ... an extremely lenient approach."

  2. Why are those statements interesting?

  3. Good to see the press gave the judges statement in more detail than usual. The victims family making a statement about leniency shows their character more than anything else.
  4. The first is interesting because a judge has made a statement that drivers have duty of care to see another road user. It goes against other judgements that the rider could not have been seen thus the driver was blameless. It seems to me that there may be a change in the air?

    The second mentions "paying proper attention" ... which backs up motorcyclists complaints that drivers should not get off with the 'smidsy' statement.
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  5. Great find there Fractalz
  6. It also merits mentioning the judges observation that it was not so much a personal deterrent but a general deterrent that he was aiming for, to me he acknowledges an inattention problem generally.
  7. If I remember correctly, the sorts of decisions you might be referring to involved situations where the sun was behind the rider or it was dark etc. This is different, she cut a corner and seems to have had good visibility?
  8. If does seem that he has made judgement based upon a belief that the driver's actions were intentional, and that intention included the failure to concentrate adequately (although not to hit the rider intentionally).
    The conclusion would seem to be that she would probably have seen the rider if she had fulfilled her responsibility to look harder.
  9. Sad to see a rider down, but good judgement. At least in this case the judge took the wishes/views of both parties whilst still exercising what was required...............theres no winners in this case.
  10. That's not really what it says. The main point is that each individual case is examined on the circumstances and merits of that particular case.

    On the whole, it was this sentence I found interesting: "Judge Jones said Edmonds' "personal deterrence" was not an issue but the sentence needed to send a message for "general deterrence"."
  11. I wonder if this woman had heard a radio ad asking her to watch out for motorcycles whether it would have possibly changed the outcome.
    The fact her "duty of care" was enshrined in common law made absolutely no difference to her behaviour.
  12. Fair enough, but nothing new there. That is why I asked what was so interesting about it. Duty of Care has been developed over a long period of time and is enshrined in Common Law.

    Other judgements where the rider could not have been seen are irrelevant to the above District Court case. Each case is assessed on its own merits. There is no change in the air. You can locate such statements dating back to the early 1900's. I've provided numerous similar cases and the topic has been discussed in detail on many occasions.

    Peacock v Jones [2010] WASC 358

    Robson v Gould & Anor [2011] NSWDC 176

    Again, that is nothing new. It is common sense to pay proper attention. In fact the law says a person must not drive a vehicle without due care or attention or without reasonable consideration for other persons on the road.

    Wilson v Murray [1962] HCA 60

    Harradine v Bishop [2003] SADC 111

    Liddle v Twohig [2008] NSWSC 95

    Nominal v Chaffey & Ors [2011] QSC 88


    Sorry, I didn't see your post until after my previous.

    In Veen v Regina [1988] HCA at 476, Mason CJ, Brennan, Dawson and Toohey JJ said:

    “… sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

    Section 3A of the Crimes (Sentencing Procedure) Act 1999 provides you with the purposes of sentencing and Section 3A(b) gives statutory recognition to the common law principles of specific or personal deterrence and general or public deterrence:

    (b) to prevent crime by deterring the offender and other persons from committing similar offences,​

    Deterrence theory is predicated on the assumption that the harsher the punishment the greater the deterrent effect. Specific or personal deterrence is applicable where an offender has a prior criminal record which manifests a continuing attitude of disobedience, such that more weight should be given to retribution, personal deterrence or protection of the community: eg. Veen v Regina [1988] HCA at 477 and Regina v Abboud [2005] NSWCCA at 33.

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  13. Thanks Justus. I was remembering something I'd read a few yeras ago, though upon inspection it was obvious I had wrongly remembered the reason for appeal.:facepalm: