Earlier this morning, four police officers died when they were hit by a truck after pulling over another driver in a Porsche for speeding on Melbourne’s busy freeway. Two senior constables and two constables were killed in what is the biggest loss of life within a single incident in Victoria Police History.
One of the Officers that had died was newly appointed Constable Josh Prestney, who had only started his role less than a week ago. His grandmother had left an emotional post about this horrific incident and stated that he was ‘so proud to serve’ his community.
The 41-year-old Porsche driver had allegedly taken photos of the crash, shared them on Facebook and left the scene. The Porsche driver has an extensive criminal history and has since made contact with the Police.
The approaching semi-trailer had lost control while attempting to move from one of the traffic lanes on the freeway into the emergency land. Chief Commissioner Ashton stated that the truck was travelling at 100 kph when they hit the police vehicle. The vehicle was hit so hard that it spun across multiple lanes of the freeway. The truck driver remains in hospital under police guard.
If police do proceed with charging the driver, the most likely charge would be Negligent Driving Occasioning Death.
THE LAW
Negligent Driving Occasioning Death falls under Section 117(1)(a) of the Road Transport Act 2013 (NSW) which states:
(1) A person must not drive a motor vehicle on a road negligently
(a) If the driving occasions death – 30 penalty units or imprisonment for 18 months or both (in the case of the first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence)
(3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following;
(a) The nature, condition and use of the road on which the offence is alleged to have been committed
(b) The amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road,
(c) Any obstructions or hazards on the road (including, for example, broken down or crashed vehicles, fallen loads and accident or emergency scenes)
Case Law
The nature and elements of the offence of Negligent Driving were considered in Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953 wherein it was said the offence or test for Negligent driving essentially being established is;
….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.
WHAT MUST THE PROSECUTION PROVE?
Since Negligent Driving offence is a criminal offence, the burden of proof lies on the Prosecution.
National Criminal Lawyers® are the one of the best Traffic Lawyers Sydney has to offer and we always ensure the prosecution must prove each of the elements in the charge beyond reasonable doubt.
That is a high standard of proof that the prosecution must achieve before someone can be convicted of Negligent Driving.
To establish Negligent Driving, the prosecution must prove each of the following matters beyond reasonable doubt;
- Negligence is generally defined as a failure to take proper care, therefore to be proven guilty of negligent driving the prosecution need to prove beyond a reasonable doubt that you failed to take proper care when you were driving your vehicle. If there is any reason to doubt that you were driving negligently, you must be found not guilty.
- Police must also prove that you were driving the vehicle, and that it was being driven on a road or other related area.
- For Negligent driving occasioning grievous bodily harm, the police must also prove GBH occurred because of the Negligence
- For Negligent driving occasioning death police must also prove death occurred because of the negligence.
IF YOU ARE CHARGED WITH THE OFFENCE OF NEGLIGENT DRIVING, WHAT ARE YOUR OPTIONS?
National Criminal Lawyers® have been successful in defending a number of Negligent Driving charges where the prosecution could not establish each of the elements of Negligent Driving. We have also achieved a number of non-convictions for Negligent Driving charges.
NCL offer the following options for those who have been charged with Negligent Driving;
- We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
- NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
- Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
- Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.