Facts according to the police
The accused was travelling in an easterly direction and stopped at an intersection to turn right. At the time the victim, riding a motorcycle, was travelling in a northerly direction and going straight ahead. The accused turned right and collided with the near side of the motorcycle causing the rider to fall on to the road and sustain injuries. The rider was conveyed to hospital for a broken leg. The accused was charged with Negligent Driving Cause Grievous Bodily Harm.
Based on the limited information in the fact sheet we advised our client that at first instance he should enter a plea of not guilty and therefore be given an opportunity to consider the brief and possibly retain an expert to comment on the circumstances of the accident.
Once we received the brief the following information was revealed:
Our client’s version to police
Our client told police that he stopped at the intersection to turn right and checked both ways. After giving way to a few cars, he noticed a gap on his left and right and noticed a truck coming towards him turning left into the street he was coming out of. He noticed a motorcycle in front of the truck. Once that motorcycle passed he proceeded to turn right. As he was doing so, he heard a bang and saw a person fall on to the road.
The victim’s version to police
The victim was travelling at approximately 70km/h following another motorcyclist along the main road. As she passed the intersection in question she saw a vehicle come out of the side street. She did not have time to brake and the vehicle collided with her.
What became apparent upon review of the facts and the versions given to police is the fact that there were 2 motorcyclists following one another along the main road. Our client had seen only one of those motorcycles. He gave way to that motorcycle but the second was obscured behind the truck turning left into the street he was exiting. Could he be found guilty of negligent driving?
We retained an expert who had specialised knowledge in traffic engineering and road safety to comment on the circumstances of the accident. The expert gave an opinion that the victim’s motorcycle was concealed from our clients’ view by the truck turning left. Our client believed that there was only one motorcycle following the truck, which had overtaken the truck just before the intersection, clearing the traffic for him to make his right hand turn.
The expert was able to conclude that based on the damage to our clients’ motor vehicle, he was travelling at a low speed on impact. He also confirmed that the stretch of road upon which the motor cycle was travelling was sign posted with a speed of 60km/h.
What the prosecution had to prove
The prosecution had to prove two things:
- That our client drove negligently
- That as a result of the negligent driving a person sustained injuries amounting to grievous bodily harm
Negligent driving is established where it is proven beyond reasonable doubt that a defendant drove a motor vehicle in a manner departing from the standard of care for other users of the road, to be expected of the ordinary prudent driver in the circumstances.
Although our client had come to a complete stop at the intersection and had checked for traffic in both directions, he accepted in his version to police that he was aware of a truck turning left and noticed a motorcycle pass the truck. At that point he assumed that no other traffic was passing through the intersection and therefore that it was safe for him to proceed to turn right. In doing so, a magistrate might have concluded that he was negligent by not waiting for the truck to finish the turn in order for him to have an unobstructed view of the road before the intersection.
Did the injuries amount to grievous bodily harm?
Grievous bodily harm is defined both in statute and at common law. In statue, s4 of the Crimes Act 1900 (NSW) provides that grievous bodily harm includes permanent or serious disfiguring of the person. At common law, the definition of grievous bodily harm is broader and includes any injury that is considered to be really serious harm to the person.
In the present case, the victim described her injuries to include a broken hip, open break to the thigh bone, broken bone in the knee and skin graft to the shin.
A doctor also prepared a statement outlining the injuries and treatment as follows:
- A number of fractures to the left leg
- Degloving injury to the soft tissue around the left knee
The injuries required 2 operations (insertion of screws and plates) followed by plastic surgery and a requirement that the victim continue physiotherapy following surgery.
No expert certificate was prepared for the doctor to give evidence, nor was there a notice that the evidence was to be lead at the hearing by way of tender of a written statement. The doctor did not attend court on the day of hearing. Ultimately the prosecution conceded that they were unable to lead the doctors’ evidence.
Therefore there was no proper evidence of the injuries sustained which arguably may have amounted to grievous bodily harm. The prosecution laid an alternate charge of negligent driving and our client pleaded guilty to that charge instead.
The difference between the two charges
Negligent driving occasioning grievous bodily harm carries a maximum penalty of $2200 and/or 9 months imprisonment with an automatic disqualification of 3 years and minimum disqualification period of 12 months (in the case of a first offence).
Negligent driving carries a maximum penalty of $1100 fine (with the accrual of 3 demerit points).
On sentence, the facts were amended to remove all reference to the injuries and the expert report of the traffic engineer was tendered. The magistrate considered the circumstances of his negligence in light of the opinion provided by the expert and accepted that his moral culpability was towards the lower end of the scale. The magistrate heard lengthy submissions and ultimately dealt with the matter without recording a conviction pursuant to section 10 Crimes (Sentencing Procedure) Act. A section 10 meant that he did not have to pay a fine nor accrue the demerit points. The charge was effectively downgraded and the client no longer faced the severe sanctions associated with the more serious charge.
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