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[QLD] appropriate charge for an at fault driver causing serious injury?

Discussion in 'Politics, Laws, Government & Insurance' at netrider.net.au started by cuvy, Oct 14, 2009.

  1. Hi All,

    I was recently in a traffic incident where a driver did a uturn in front of me, causing serious injury. By serious I'm talking one week in hospital, six weeks off work, six to nine months physio and some permanent impairment, probably in that I won't be able to run anymore.

    The policereport has not yet been finalised, but the investigating officer indicated to me that he expected they would get the driver for doing an illegal uturn. While I am seeking compensation from the driver's CTP and do not expect to have any issues, I do want to ensure that the driver is appropriately punished for his actions.

    So, my questions for those experienced with QLD law, what is an appropriate charge that I should push for for such an incident? I hear mention of "Driving without due care" and the inclusion of something like a "Impact Statement" to indicate the severity of injuries caused. If anyone can suggest what appropriate charges should be, preferably backed with links to relevant laws, it would be much appreciated. Or even just links to the relevant laws or other information sources.



    Thanks,
    Phil
     
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  2. Ouch, sounds nasty. Sorry to hear that.
    Im from NSW so im not entirely sure on QLD laws but negligent (?) driving seems to come to mind.
    Good luck with the case mate
     
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  3. Mate, you can kill someone on the road and still get a slap on the wrist, I wouldn't hold your breath. Just concentrate on getting yourself better, dont waste you're energy on the twat.
     
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  4. The only one who'll make money out of pursuing this will be the lawyer. Save your money, get well, and put the money into a shiny new bike :).
     
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  5. +1, on the money there Hornet.
     
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  6. I'm not engaging legal assistance for this, what I'm wanting to do is know the appropriate laws so that I can push the investigating police to charge him with something appropriate. Compensation is something completely separate.

    Not something that I'm going to become obsessed with, but not something I'm going to just let slip either. Working in a large, beauracratic government organisation I'm somewhat adept at pushing shit uphill. My attitude is that worst case, the guy will get off easy (just like he will if I do nothing). Best case is that it will set a precedent. Probable outcome is that once I've done the research, it'll make it easier for future cases to apply similar pressure, hopefully making a difference in the long run.

    Phil
     
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  7. Is this the sort of thing you're looking for? http://www.aussielegal.com.au/informationoutline~nocache~1~SubTopicDetailsID~814.htm

    It refers to Dangerous driving offences ( Including Dangerous Operation of a Motor vehicle) and at the bottom, Careless driving. If you are interested in the Dangerous Operation Offence then have a look at the Bench Book reference: http://www.courts.qld.gov.au/Benchbook/SD-103-DangerousOperationOfAMotorVehicle-s-328A.pdf

    But I am not familiar with QLD law and have only really glanced at the links and am not sure if all the elements are there. You are more familiar with your own case so would have a better idea. The police will be able to tell you immediately if the case has the elements. If they have spoken to all involved and completed their investigation.
     
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  8. wouldnt it fall under the paying undue care and attention ruling?
     
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  9. i still cant get over the fact that he did a u-turn in one of the stupidest places... a blind hill
     
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  10. I can, If there is one thing becoming more and more apparent has the years go by, Common sense and forethought are dieing, people in all walks of life are just doing, instead of thinking 1st.


    And why ? I put it down the the way OHS is starting to govern our lives, we are being told how to work and live, lest we injure our selfs.
    So as a result, with no SWMS on where not to do a U turn sitting in plan view of this driver, he just went ahead and did it with no other thought process needed. :soapbox: :bolt:
     
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  11. Bob, I put it down to people just not giving a sh!t about anyone but themselves in this materialistic self-indulgent career-orientated me me me world.

    There's no sense of community or personal responsibility, because in a globalised and corporatised world where people are divorced from the consequences of their actions, there's no need for either.

    Phil, this sucks. I hope you have the energy to fight, so you can hold this f*cker accountable, and recover to the fullest extent possible. Sounds like it's going to be a long road, so stay positive! All the best mate.
     
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  12. I'd suggest you start by ignoring the (sadly typical) negative comments about how it's pointless to pursue and that the other guy will get a slap on the wrist. Lawyers, magistrates, judges and prosecutors don't treat tabloid papers as a reliable source of law, so why listen to someone on the internet who does?

    The most likely charge considering the circumstances you have described would be Dangerous operation of a vehicle (s328A of the Criminal Code).

    Basically:
    A person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place commits a misdemeanour.
    Maximum penalty--200 penalty units or 3 years imprisonment.

    There are aggravating circumstances which result in a greater version of the charge (intoxication, speed, previous convictions under the same section). Of all those the most likely one is that where the operation of a vehicle dangerously results in grievous bodily harm, which carries a maximum sentence of imprisonment for 10 years. Whether or not your injuries meat 'grievous bodily harm' can be a tricky question to answer, as it is a combination of law and medicine. Basically it's not one anyone can answer through a forum, you would need to seek the proper legal advice (ie. see a solicitor) or rely on the judgement of the police prosecutor/DPP (which ever one handles the charges and case before court).

    In determining whether a person was operating a vehicle dangerously several factors are taken into consideration, including:
    nature, condition and use of the place (ie. was is appropriate to perform the act in that place);
    nature and condition of the vehicle (not the same as road worthiness, but that is most definitely a factor);
    number of people, vehicles or other objects that are, or would reasonably be expected to be, in the place (eg. likely or actual amount of traffic);
    operator's [driver's] blood alcohol level;
    any other substances in the operator's body (this is obviously referring to any sort of substance, legal or not, which may impact on the person's ability to operate a vehicle in a safe, legal manner; whether the person knew the substance would, or would be likely to have an impact on their ability is also likely to be taken into consideration).

    Importantly intent is not an element of this offence. Indeed, no 'accident' need to have occurred - though those people who are just driving dangerously without actually causing injury or damage would be unlikely to get anything more then a fine (and suffer demerit points or loss of licence, though that is a separate issue to the criminal offence here).


    There are some alternative charges - Careless driving (which covers circumstances where a driver drives without due care and attention and driving without reasonable care towards other road users) which carries maximum penalty of 40 penalty units or 6 months imprisonment. Plain old common assault could also be used, or potentially, grievous bodily harm (which is basically assault resulting in grievous bodily harm).

    What charge(s) are actually laid will depend predominately on what the prosecutor believes they can prove beyond a reasonable doubt - which in turn will depend on a number of factors, most importantly the evidence available. Where the prosecutor believes that a more serious offence may be difficult to prove beyond a reasonable doubt they may seek conviction on a lesser (and more likely to be proved) charge. The basic idea is that a conviction on a lesser charge is better then no conviction at all. To those people who don't like this (or think it's being soft on criminals) you need to either accept that you have to fork out the money to launch a private prosecution (ie. pay for your own lawyers) or be willing to pay the increased taxes required to better fund and resource the public prosecutors.

    Finally don't always trust what the police officer on the case says when it comes to legal matters - The police are by and large very good at what they do (and like the rest of us are overworked) but they are not experts on law, and really, it's not their job to be. That's the role of judicial officers and lawyers (including prosecutors).
    If you are wanting to discuss what charges may result, I suggest asking to talk to the police prosecutor (I am guessing the matter wont be serious enough to be referred to the DPP, but the case officer will be able to point you to the right person).
     
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  13. GotsPetMonkey - thanks, exactly the sort of answer I was looking for. Should get me going in the right direction.

    Day - also, thanks for your response.

    I'll let everyone know how I go as things progress.

    Cheers,
    Phil
     
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  14. Your welcome. Good luck, don't underestimate how much being respectful and willing to listen and understand will be towards the prosecutor (and for that matter, the case officer) giving your case a bit of extra effort. They have a huge workload and a never ending stream of victims who like to think they know better. Reality is, it's all about playing the game :-$


    Some more general tips (which will probably help others in similar situations too)

    • Always write down everything you can remember about the accident as soon as you are able to! Even the most mundane material may prove important. If you haven't done this yet Cuvy, do it NOW! If the matter goes to trial the judge/magistrate wont expect you to have a super memory, you can take your notes in and read off them (be sure to mention that you wrote these notes shortly after the accident and you are using them to aid your recollection - the prosecutor should brief you on this however).
    • Your list may also be tendered as evidence own its own merits if circumstances require it (normally if you can't attend court). So make sure it's objective, comprehensive and to the point. Avoid putting unnecessary opinion in there (so don't say the other driver was clearly drunk or an idiot).
    • As I already mentioned, keep things cordial and respectful. Police, prosecutors and magistrates don't know you and won't be interested in helping you if you give them crap.
    • Don't be afraid to mention the effects the accident has had on you - pain and suffering, loss of income, how it's effected your family, that you can't afford your mortgage, that you will be undergoing medical treatment for how ever long, that you will never be the same, etc. The defendant will mention this sort of stuff in relation to themselves in the hope of getting a lighter sentence (even the unemployed rabbit on about how a conviction will ruin their career). You need to show the magistrate that the defendant had no regard for you, so why should they have regard for them?
    • Get involved. You are already emotionally attached to the outcome of the case (I hope, you were in a nasty accident!). You are better able to influence a case if you remain close to it.
    • When someone makes a decision you don't like, try to get them to explain why (note, this may not apply to the magistrate/judge, but if they are any good, they will explain things clearly for you in the first place). You may discover there is a good reason behind it, or it will put you in a better position to challenge it.

    If I think of anything else I'll add it on. Brain no work so great after sunset...
     
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  15. Cheers,

    There is some great advice and information in GodsPetMonkey's posts.

    Good luck. I look forward to reading more.
     
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  16. An update on my (limited) progress:

    Out of the three officers who I spoke to at Ferny Grove Police station, 2 (including the investigating officer) basically shrugged me off, evading any questions regarding the process which they follow when investigating a case. The third (Snr Constable Keir) was actually very helpful, and explained the process as follows:

    - investigating officer conducts the investigation

    - based upon evidence collected, finalises the report, which includes a recommended action (eg charge)

    - finalised report goes to the Superintendant of Traffic (Senior Sargent Andy Graham in the case of Ferny Grove police station)

    - supt of traffic reviews case, and either approves, or sends it back to investigating officer with comments for further investigations etc

    - after report is approved by the supt of traffic, it goes to the adjudication section

    what happens after this i'm still not clear on.

    My main concerns are:

    - a charge had been decided on (performing an illegal u-turn), and evidence was being gathered to support this, rather than evidence being gathered and then determining an appropriate charge

    - appropriate evidence was not being gathered. for example, the extent of my injuries was determined by the investigating officer, not a medical practitioner. This was especially worrying, since, when listing my injuries, he made no comment about my fractured tibial plateau (the most serious injury which will cause me some permanent disability), but was shocked when i mentioned my fractured acetabulum (hip, non-displaced), which is of almost no significance in comparison to the tibial plateau.

    - the driver's intent was unduly biasing the officer's actions. on many occasions the investigating officer said to me "he didn't mean it", and hence shouldn't be charged with something that could end up with a jail term. S328A does not require intent to be applied, and my understanding is that a judge, not a police officer, should be making this decision.

    - relevant evidence was not gathered. for example, the direction i was travelling in was not recorded initially. no pictures of descriptions of damage to the bike were gathered. no measurements of visibility were taken.

    I submitted a ministerial, which was referred to the supt of traffic. This did serve well, as if not for this, i don't believe I would have been able to get in contact with the supt of traffic. I expressed the above concerns to him, which seemed to be listened to. His opinion was that dangerous driving was out of the question (i am still not convinced of this), but driving without due care and attention may be applicable, depending on the strength of evidence. He also was happy to include photographs and additional statements from me to include in the police report.

    So, to summarise, at this stage:
    - talking to the investigating officer and others "on the ground" is a waste of time. start out going to the superintendant of traffic
    - driving without due care and attention is probably the best outcome
    - police will only pursue what they are confident they can prove "beyond a reasonable doubt". This seems to translate into "what we can easily prove beyond a reasonable doubt".
    - this may not happen due to insufficient/sloppy evidence collection. if this is the case i am going to pursue this further (perhaps with an ombudsman)

    On a side note, this whole experience is making me completely lose faith and respect for the traffic police / justice system. There seems to be a complete lack of interest in discouraging road users from dangerous behavious unless it involves speed. Just last week i saw a driver perform a very dodgy u-turn right in front of a mobile speed camera. How is that improving safety? And then I saw a speed trap at the toowong roundabout, getting people who sped up to 90km/h 100m before the 90km/h speed limit change. meanwhile, people indicate incorrectly, use lanes incorrectly and fail to give way at the roundabout. a roundabout where a lot of accidents happen, unlike a the straight section of road leading to a highway where no accidents happen.

    and people wonder why road rage happens.

    Phil
     
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  17. Well, three months down the track and the Police have finalised their investigations - the outcome? They are charging him with performing an illegal u-turn. A ****ing joke.

    Sadly, it seems that the Ferny Grove Police are exactly as "the pessimists" described. GotdsPetMonkey - obviously you have experience in these matters, and I just wish that the police I am dealing with had the sense of duty and common sense that those you have dealt with seem to have.

    I have been dealing with the Superintendant of Traffic for Ferny Grove, a Senior Sargent Andy Graham. He has been very dismissive. He even said, and I quote, "your injuries are irrelevant, we can only charge him for what he did, which was an illegal u-turn". That's a ****ing insult. Especially considering the increasing severity of my injuries, which quite clearly now constitute grievous bodily harm, yet they refused to consult any sort of medical practitioner for an opinion on this.

    When quizzed on why a more serious charge (or even something slightly relevant, like failing to give way) Snr Sarg Graham was extremely evasive as to an explanation. The impression I have gotten from him and many others is that they are assuming, since I'm a motorbike rider and it was a sunday ride on Mt Nebo, that I was speeding. Hence they don't believe they can prove anything beyond a reasonable doubt. I wasn't speeding (in fact i was cruising under the speed limit), but they didn't bother collecting any evidence surrounding this. I really do feel like this is a case of the poliec thinking "just another idiot motorbike rider, he probably had it coming", which is just ****ed.

    So, I am in the process of obtaining a copy of the finalised police report, which I am going to go over with a fine toothed comb, and then escalate the issue to the next level. I'm guessing that the driver probably won't be charged with anything more serious, since the evidence probably isn't there and can't be collected now. However if i can show that the investigating police didn't do their job properly, then I'm going to push that as far as I can. It is just disgusting to have police who have the power to charge people, yet do not apply this fairly and without prejudice.

    I'll post with progress, and also links to useful resources (acts etc).

    Phil
     
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  18. Phil, how are you going these days with your recovery? You had a good idea about submitting a ministerial. Its shocking that those who are supposed to be investigating left out relevant details.

    "Your injuries are irrelevant" only says to me "launch civil action if you want to do anything about that". Unfortunately, that's how the system appears to work. If you do go down that path, make sure everything is in your initial application because you can't add things later on (around the trial date or in court) if you forget them now.


    "The impression I have gotten from him and many others is that they are assuming, since I'm a motorbike rider and it was a sunday ride on Mt Nebo, that I was speeding."

    The likelihood of this being the case is high but my statement is purely based on comments I've heard non-riders say. Were any photos of skid marks (if there were any) taken?

    I think GodsPetMonkey wrote that sometimes lower charges are made even if it seems unjust. It seems like that's happening in this case. Good luck in getting a win and, more importantly, good luck in recovering as much as possible as quickly as possible.
     
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  19. The recovery is going pretty shit really. The knee is healing well, however i've just had a shoulder reconstruction, which has had some issues and I will probably need some further surgery on the shoulder. In addition, I found out about a month ago I also have a fracture in my heel bone, which will most likely need surgery. So, once the shoulder has healed (at least 6 weeks from now, if not more due to the complications), i'll probably be back on crutches for 6-12 weeks as the heel gets better.

    Had it just been the knee (tibial plateau fracture) and shoulder then i'd probably be coping, but knowing that after all the hard work i've put into rehab on the knee is going to go to waste due to another 6-12 weeks on crutches is just too much. And the knowledge that i'm going to have to go back to shower chairs and all the frustration around crutches just completely sucks. The fact that the guy who did this to me is has virtually no consequences when it was 100% his fault (had i actually been speeding or doing something silly to cause the crash, then i'd be angry at myself) is just ****ed up.

    I'm not going to bother going down the path of getting my own legal help. While i want this guy to be charged and the police to do their job properly, i know that this path will be nothing but a money pit. In the end, i'm more concerned about making sure the police don't get away with stuffing up an investigation - there is a limitless supply of idiots on the road and prosecuting one will not improve road safety. On the other hand, forcing police to do their job properly might have a better chance of improving road safety a bit.

    There were no skid marks, but I believe there were no photos taken of the crash site at all, let alone things like measurements of distances to corners for visibility etc. The investigating officer did not even record the direction of travel of either vehicles at the time. I think that is a pretty good indication of the sort of competence i'm dealing with.

    A agree with you on GodsPetMonkey's point - they are only going to charge someone with something they are confident they can prove beyond a reasonable doubt. If they haven't bothered to collect any evidence they are obviously going to have trouble proving anything beyond a reasonable doubt...

    Phil
     
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  20. This is so wrong on so many levels.

    I often disagree with the wild statements about how speeders are unjustly treated compared to 'real' crimes, but this really does prove their point and me so very wrong.

    Get well soon.
     
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