By Calvin Gnech, Criminal Lawyer and Legal Practice Director at Gnech and Associates, assisted by Elisabeth Baulch, Law Clerk at Gench and Associates

11 August 2021

Have you ever caught yourself forgetting to shoulder check before changing lanes? Quickly “chucking a uey” without explicitly knowing it is lawful to do so? Speeding on a quiet road because “no one is around”? These are the type of seemingly “minor” traffic breaches that, in the blink of an eye, can cause catastrophic consequences for other road users, your passengers and yourself.

These fleeting errors in judgment can turn every day, law abiding citizens into defendants in criminal proceedings if police allege your driving caused death or grievous bodily harm to another person.

The offence is legislated in subsection 328A(4) of the Criminal Code 1899 (Qld), which states:

‘A person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place and causes the death of or grievous bodily harm to another person commits a crime …’

The maximum penalty is 10 years imprisonment, however if the defendant was intoxicated, excessively speeding, unlawfully racing at the material time or fled the scene knowing a person has been injured or killed, these aggravating factors can increase the penalty to 14 years imprisonment.

Additionally, as of 18 June 2018, the mandatory-minimum period of disqualification from holding or obtaining a driver licence doubled from 6 months to 12 months. According to the Explanatory Notes of the Heavy Vehicle National Law and Other Legislation Amendment Bill 2018 this increase is “designed to encourage increased awareness of the importance of safe driving behaviour”.

Once established that the defendant was driving the motor vehicle or they interfered with someone who was, the contentious elements police must prove are:

• the defendant’s driving was dangerous and
• the defendant’s driving is the direct causal link that resulted in the death or grievous bodily harm of another.

Full regard to all the circumstances must be considered, with the court analysing each incident on a case by case basis. Some circumstances include the nature and condition of the road and place, the nature and condition of the vehicles and the presence of alcohol or other substances in the defendant or victim’s system. The victim’s behaviour may also be considered, to assess whether their actions contributed to the collision.

These cases are often complex and devastating, involving the tragic death or severe injury of the victim, and continuing trauma for the victim’s family and any survivors.  Sadly, these events are often devastating in a different way for defendants, who must now come to terms with the effects of their actions which often are a split second decision gone wrong. 

Gnech and Associates are experienced in navigating this layered area of law.  Call our office on 3558 1040 for more information.