Dangerous Driving Causing Death

Dangerous Driving Causing Death

Dangerous Driving Causing Death

What is Dangerous Driving Causing Death?

Under current South Australian law, Section 19A of the Criminal Law Consolidation Act 1935, Police can charge a person who drives a vehicle (including vessels and machinery) in a culpably negligent manner, recklessly, or at speed or in a manner dangerous that causes the death of another.

 

What Penalties are attached to this offending?

This offence has significant penalties attached, which is why it is crucial to seek legal assistance. If you enter a guilty plea or are found guilty of this (basic) offence you could face the following by way of penalty:

  • Imprisonment for up to 15 years; and
  • Disqualification from holding or obtaining a driver’s licence for 10 years or longer.

If your offending is considered ‘aggravated’ by an aggravating feature (you were attempting to escape pursuit by police, you were racing, you were driving whilst disqualified, you had alcohol above 0.08 grams or drugs in your system or you were speeding in excess of 45kmph above the nominated speed limit) you could face the following by way of penalty:

  • Imprisonment for life; and
  • Disqualification from holding or obtaining a driver’s licence for 10 years or longer.

 

How can Woods & Co Lawyers help me?

Woods & Co Lawyers had extensive experience in dealing with clients charged with Dangerous Driving Causing Death.  We assist you through the court process and finely examine your case for any defences that may be available. We are also experienced in negotiation with the prosecution, which may enable you to have the charges you face downgraded to a less-serious equivalent. We have had success in this area, with some past clients receiving suspended sentences or a sentence of home detention instead of actual imprisonment as an outcome. Please call our office on 8311 3111 for more information.

 

Woods & Co Lawyers experience with Dangerous Driving Causing Death?

If you would like to undertake further research, we encourage you to open the hyperlinks below, which show various media articles related to clients we have assisted for dangerous driving causing death. Note that in some of the examples we successfully had their charges downgraded.

2018http://www.abc.net.au/news/2018-09-26/german-tourist-given-suspended-sentence-over-fatal-crash/10308818

2016https://www.adelaidenow.com.au/news/south-australia/mark-darren-burns-jailed-for-five-months-over-inattentive-driving-that-caused-triple-fatal-crash-on-yorke-peninsula/news-story/21b0c2e8442d0ededddc444a8460a71c

2016https://www.adelaidenow.com.au/news/south-australia/sa-driver-bo-xi-gets-home-detention-over-fatal-crash-in-adelaide-hills/news-story/a864d66b45e6e0db6418af4ff86fb897

drivers license appeals and demerit points

Drivers License Demerit Point Glitch

Friday, August 12, 2011

Last week, The Advertiser newspaper reported that 8000 people would lose their driver’s licence due to demerit points or breaches of conditional licence conditions. Sadly this is true and already we have been inundated with calls from people affected by this issue. The problem has been created by a “glitch” in a computer program used by the Courts Administration Authority. Information concerning demerit points and conditional licence breaches has not been relayed to the DTEI as a result of the “glitch”.

This issue has since been rectified and now people who have moved on with their lives are facing dire consequences due the disqualification notices. It should be noted here, that there are a select few people who can elect for a Magistrates Appeal, Safer Driver Agreements or Good Behaviour Options in certain circumstances. Those people are notified of this fact on the notification letters. Others are not so lucky and now face disqualification some years down the track.

At Woods & Co, we believe this to be unfair. Of course, it could be argued that road users who break the rules should punished according to the rules. That would be a reasonable argument if the punishment were meted out expeditiously. The very purpose of expiable offences is to facilitate the efficient disposal of matters involving minor offences. This includes some traffic offences. Efficiency in disposal of these matters punishes the offender quickly and ultimately alleviates the need for the Courts to intervene in the conduct of minor matters. There are, as a matter of necessity some matters that will require Court intervention. For the most part, however, minor traffic offences and are expiated and the consequences (if any) such as demerit points and conditional breaches are then handled by the DTEI.

In a perfect world, there would be no need to comment on a system that appears on the face of it to be a working system. Clearly we do not live in a perfect world and this system is not without its problems.

In a legal sense, the Motor Vehicles Act 1959 makes it clear that when the Registrar of Motor Vehicles becomes aware of demerit or conditional licence infringements, it MUST disqualify the offender from holding or obtaining a driver’s licence. The relevant section of the Act does not give the Registrar any discretion to act otherwise. There is no time limit applicable. There is no allowance for consideration of special circumstances. In essence, the DTEI and Registrar have no alternative but to disqualify the offender. We have spoken with the DTEI and they agree that it is far from an ideal situation. The DTEI are currently powerless but are committed to finding a resolution to the problem.

Where to now?

It’s our view, after carefully considering the relevant legislation, that there are limited options available for an individual legal remedy for any one person affected by this issue. We feel that the best way to attack the problem is to pool the resources of many of those affected and make a formal approach to the Minister and appeal to have some retrospective changes made to the Act. This resolution comes with its own problems, but that is job of Parliament. That being said, this issue will not be solved by finger pointing and laying blame. To do that would be counter productive.

This is a case where Parliament could not possibly have foreseen a situation arising of this magnitude. We say that they can, now, have the foresight to remedy the problem.

There are other ways to solve the problem, but they are individual remedies and come with their own problems.

An application to the Registrar for review is available to an affected person under Section 98Z of the MVA. An appeal to the District Court is available to a person who is dissatisfied with a decision from the Registrar. Whilst a person who is aggrieved by a decision of the Registrar can ask for a review, it would seem somewhat empty if the Registrar has no discretion to act.

Given that most people affected by this are time poor (most disqualification are effective at the end of August 2011) we have doubts as to the capacity of the Registrar to timely deal with these applications. Again, there is the issue of unforeseen circumstances in the drafting of the Act(s). Some of those affected may have financial barriers to such a remedy.

Another remedy is possible by virtue of Section 16 of the Expiation of Offences Act 1996. This section allows for the issuing authority (generally the Police) of the original expiation note to withdraw the notice in certain circumstances. If these circumstances exist, we are faced with already expired time limits (60 days from the date of the notice has expired). The next problem and perhaps the most impractical, as far as the issuing authority is concerned, is the fact that the Act requires that if a notice is withdrawn, the expiation fee must be refunded. Common sense suggests that this will not happen.

We would encourage anyone affected to contact our office immediately and provide your details to us. We will then make a formal approach to the Minister to make the necessary changes. Whilst we cannot guarantee a successful or positive outcome for all, we can say that there is strength in unity. At Woods & Co, we continue to strive to ‘protect your rights’.

Damon C Ind

Solicitor – Woods & Co

drink driving lawyers in Adelaide

Drink Driving Cases In Adelaide

DRINK DRIVING CASES – PROSECUTION ERROR IN PROVING CASE 19 AUG 2011 

Friday, August 19, 2011

DRINK DRIVING CASES – FAILURE TO PROVE THE BREATH ANALYSIS OPERATER WAS AUTHORISED TO OPERATE THE BREATH ANALYSIS INSTRUMENT.

On 16 August 2011 the Supreme Court handed down a decision of Police v Short [2011] SASC 131. The accused pleaded not guilty to exceeding the Prescribed Concentration of Alcohol. Therefore, the prosecution were put to proof. In order to prove the case against the accused the prosecution had to establish that the breath analysing instrument was operated by a person authorised to operate the instrument by the Commissioner of Police. The case was run by a colleague of mine, Mr Ken Gluche from Websters. The media have since created a maelstrom in respect of whether this case may have wider implications.

In Short’s case, the prosecution set about proving the breathalyser operator’s approval by relying on a Government Gazette. The Supreme Court found that the method of proof was deficient and the Gazette did not actually prove what the prosecution had hoped it had. In particular, the Road Traffic Act allowed for approval of a BA operator by the tendering of a certificate signed by the Commissioner of Police. The Government Gazette was not a certificate and was certainly not signed. Secondly, the Gazette ‘approved ‘ an operator to ‘conduct a breath analysis’, whereas the Road Traffic Act required approval that the operator was approved to ‘operate the BA instrument’. The Supreme Court held there was a difference. Lastly, the Supreme Court held the Gazette only purported to prove a person was approved on 7 July 2009 and it did not approve them ‘ as from’ that date. In other words, the approval was not ongoing.

Drink Driving cases are very complex and few lawyers understand the complexity of the legislation. We at Woods & Co undertake these cases daily. We congratulate Ken on the success, but it is likely that it will have little effect for future cases as promoted in the media.

Firstly, if you have already pleaded guilty, then you admit by your guilty plea the elements of the offence and the prosecution do not have to prove the breathalyser operators approval to operate the instrument. Secondly, in this case, the prosecution simply failed to prove that fact. They won’t make the same mistake. It is likely the issue can be fixed up by calling oral evidence of the approval of the operator, or by retrospectively issuing a complying certificate and relying upon that at trial.

We have been inundated with calls about this error and as leaders in our field have tried diligently to respond to all calls about this aspect. We at Woods & Co enjoy drink driving cases and the complex legislation that accompanies it. We look forward to the next move by the prosecution to see how they address this error, which as it presently stands leaves them with a difficulty of proving their case. We will continue to protect your rights and keep you updated as to trends and developments in drink driving law.

Michael Woods LLB (Hons)

Principal

Supreme Court Class Action

DTEI Glitch – Class Action Update

DTEI GLITCH – CLASS ACTION UPDATE 12 DEC 2011 

Monday, December 12, 2011

DTEI Computer Glitch

Since August of this year, we have been working on a recent discovery by the Courts Administration Authority of a computer glitch that resulted in a significant delay in the Department for Transport becoming aware of thousands of traffic offences being expiated through the Courts Administration Authority Fines Payment Unit. The result has been that the Department for Transport has now become aware of this error and many drivers have been notified that they are liable to disqualification because of these very old offences. In some cases, the offences have occurred up to two and a half years ago. It is our experience that these disqualifications have had a profound effect on many drivers.

Initially, we sought to write to the Department for Transport asking that they review their decision to disqualify. The basis for this request was that we felt there had been a decision by the department to issue the disqualification notice. Unfortunately, the Department for Transport indicated that there was no decision made as there was no discretion to make any decision. They are relying on the provisions contained within the Motor Vehicles Act. While we accept the provisions of the Motor Vehicle Act, we do not and have never accepted that this delay in disqualification is fair.

In fact, it is patently unfair. This is for many reasons, not the least of which is that many people have experienced significant change in their lives over the last two years.

We have been working closely with other law firms and we are now pleased to confirm that an action will soon be filed in the Supreme Court seeking judicial review of the Department for Transport’s decision to disqualify so many drivers after such a long period of time has elapsed. The action in the Supreme Court is essentially a ‘class action’. A class action is an action that represents a class of people. As a disqualified motorist or motorist liable to disqualification because of the computer glitch, you will automatically become one of the class of people.

As with all things involving lawyers and court actions, there is a significant cost attached. Members of the class action are going to be asked to contribute funds to pay for the argument in the Supreme Court. It is hoped that the members of the class will be able to pool their resources together to establish a fund of up to $20,000.00 for this purpose. Quite clearly the more contributors that can put funds into trust, the quicker it will be that this action can be filed.

An action in the Supreme Court, however, does not come without risk. The Supreme Court civil jurisdiction is a costs jurisdiction. This means that parties to an action are liable to pay the successful parties costs. These costs can be significant, particularly in an action such as this.

Unfortunately, we do not have the capacity to manage a class of representatives. We have been working closely with other law firms and have an agreement in place with a firm who will manage the class. We point out you will be dealing directly with that firm should you wish to proceed. It is for this reason that we ask only those that can contribute $500.00 to the pooling of funds to make contact with our office, and we will refer you on.

We advise that people should not be upset about not being able to contribute any funds. As noted earlier, anyone affected by this matter will automatically be picked up in the class. What is required though is for those that can assist with funds to come forward and notify us as a matter of urgency.

We very much look forward to hearing from anyone that can contribute and we will endeavour to keep all those people affected apprised of any new developments in this matter.