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Old 05-07-2003, 19:19   #1 (permalink)
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Question Dangerous Driving Causing Death

Gday all,
Well after a recent event where my mate hit, and killed, a 7yr old boy i have a few questions about being charged with Dangerous Driving Causing Death.

First heres what happened:
All me mates were at one guys house, same as most days during the holidays. And as 3 cars were leaveing, the 2nd one hit a lil guy (about 150m from where he started driving), he then died on the way to hospital.

The little guys family were playing cricet out the front of their house when the ball was hit across the road, and he ran out to get it without looking. My mate didnt see him, and took him out.
The guy in the 3rd car saw it, but didnt know it was a kid till they drove past.
One of my mates then told the rest of the people who were at the house, no one believed him at first. The guy in the 1st car didnt see anything, i told him about it later.

He has been charged and is now waiting for a trial. But when it first happened the coper told him he wont be charged, as it was a accident

The father said that my mate was driving at 80km/hin a 50k zone! Not that my mates 1liter car could of got that fast in 150m.

What i want to know is will my mate get off relatively easily. I dont want to be a cold shit as someone died, but it was a freak thing-not my mates fault.
Will he loose his licence, get a fine?? hes only 17 so i dunno what they can do.

Just wanted some idea


Cheers
Jase
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Old 05-07-2003, 19:44   #2 (permalink)
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AP's golden rule:

"How do you know a cop is telling the truth?"
Answer: he's got his mouth shut.
(especially when they hear that magic word 'speed')

Mate, this issue is too subjective and no doubt the charges relate to a statement made by the kid's father which the Police must be seen to test. This test can only be performed in the proper forum: court. I would however have the defence concentrate on the witness' ability to judge speed. Also, given the enrgy involved in a speed of 80km/h no kid would even breathe another breath after the impact.

Your friend needs to outlay on a highly regarded and well trained lawyer or even if appropriate a barrister to fight the charges.
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Old 05-07-2003, 19:55   #3 (permalink)
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This is a "real" offence, not a speeding fine, so the onus is on the police to prove that you were speeding.

Two ways in which they determine pre accident speed are analysing skid marks and analysing impact. Was an accidnet investigation carried out after the crash? If not they would have a very thin case I would say. Was the driver breathalysed? They can't convict without evidence, and from what you have said they only evidence is their dad's accusation, which won't stand up without corraboration (has to be beyond reasonable doubt).

If they can show that your mate was speeding, the defense will probably rest on trying to apportion some blame to the kid or the family. This will NOT be a pleasant experience for anyone

If your mate gets off the charge, that is the end of the matter, no other fines or anything.

Best advice, as AP said, is to get a lawyer, and DON"T GET THE CHEAPEST ONE YOU CAN FIND. Get a good one for christ's sake

Sounds like a really umpleasnt affair, and I hope that it all turns out for the best.
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Old 05-07-2003, 20:07   #4 (permalink)
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Unless I'm mistaken, he'll probably get charged with manslaughter (that's what the police will probably try and get him with iirc).

As for the young child who died, condolences to his family, there is nothing worse than losing someone young, who had a full life ahead of them :(
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Old 05-07-2003, 21:33   #5 (permalink)
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It's up to the police, not the family, to prove that he was speeding. If it was on a public road, then all fatalities must be investigated by Accident Investigation ...
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Old 05-07-2003, 21:44   #6 (permalink)
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If the police thought he was speeding they proberly would have charged him with reckless driving and not dangerous driving.
So they proberly don't have the evidence to prove he was speeding.
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Old 05-07-2003, 23:17   #7 (permalink)
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Don't t take any of this as gospel, but here's my 2c + GST + etc etc.....

If this is taken on as a criminal offence, the outcome cannot be decided on the balance of probabilities. As HO HO HO has pointed out It has to be proved beyond reasonable doubt that the 17 year old was guilty.

If this is taken on as a crime committed against the state, your mate would be facing the DPP - Department of Public Prosecution, no one else.

You'd have to look up the Western Australia Criminal Code 1913 for the legal age at which he is either charged as a minor or as an adult.

Now for manslaughter (as with all criminal cases) to be considered there are two items used to assess this. One is the actus rea and the other is the mens rea.

The actus rea is when a person is found committing, or is reasonably suspected of having committed, or having attempted to commit, or of being about to commit, an offence against the State.

The mens rea is determines the criminal state of mind and may derive from:
1) Intention
2) Recklessness
3) Negligece
4) offence of strict liability.

From a human factors point of view the average any witness will remember is 30% of what actually happened. So the 80km/h claim may be called into question.

I think there is a defence called "without fault or privity" and is a common law defence. In reference to Asiatic Petroleum Co Ltd v Lennards Carrying Co LTD [1914] 1 KB 419:

To avail himself of this statutory defence, [the accused] must show that he himself is not blameworthy for having either done or omitted to do something or been privy to something. It is not necessary to show knowledge, if he has means of knowledge which he ought to have used and does not avail himself of them, his omission not to do so may be a fault, and, if so, it is an actual fault and he cannot claim the protection of this section.

There are obviously a lot of things to look at, but, yeah if you can, get a barrister for this one.

Good luck, all the best.

P.S. Leading questions may be asked in court so may I suggest your mate to tread very very carefully.......
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Old 05-08-2003, 00:32   #8 (permalink)
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Quote:
Two ways in which they determine pre accident speed are analysing skid marks and analysing impact. Was an accidnet investigation carried out after the crash? If not they would have a very thin case I would say. Was the driver breathalysed?
Forensics were there the other day. But the crash actually happened in January. They also finger printed the car, took his prints, etc.
Dont know if he was breathalysed. Dont know about skid marks either, I do drive past there alot and havent seen much.

To make the parents feel worse, apparently 1week before the neighbours told them to watch their kids more. Kept playing on road.


The guy who was driving has already been through heaps with his family.


Thanks for info, just wanted to know what happens with things like this.


Cheers
Jase
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Old 05-08-2003, 01:19   #9 (permalink)
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Will he loose his licence, get a fine??

F.uck dude i hope you are joking

Questions for you which you can only answer yourself...I know a little about law but not a whole lot about criminal law or this case. I know about what is right and just. Answer these yourself

Was your buddy drinking?
Was he speeding (60km+)? most likely as he was leaving a mates house.
Was his car in road worthy conditon? ie brakes good? negligence stemming from this.
Was there other males under 25 in the car? How many? Were they geeing him up? Had they been drinking?
Was it dark? Did he have his headlights on? Should have he?

No one wins out of this scenario. Regadless of intention, your friend has KILLED someone, that would be enough of a sentence for me.

I know emotions and passion can do stupid things. My old man would probably find out who was driving the car and go after them. The family of this kid would be, to put it lightly, upset about this incident to the extent that they exaggerate the truth to get some sort of retrebution out of this.

Condolences to the family, and to your mate if you answered all the above question "correctly".
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Old 05-08-2003, 01:53   #10 (permalink)
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Lots of interesting legal opinion forthcoming about this issue.

I'm thinking that the police may be relying on other evidence apart from a comment from a bystander that they though the car was doing 80KPH.

I would be reasonably confident that some sort of investigation was conducted by an expert from the WA accident investigation squad. That's all that squad does which makes them pretty good at that particular task.

Interesting comments from Dark_Horse. Not really up on my latin but what the hell does that defence have to do with a charge of dangerous driving? Intention is not an element of the charge therefore does not have to be proved by the prosecution.

There is nothing more depressing for all involved (the driver, the family, the police, the prosecution, the jury etc) than apportioning blame for the death of a human being.

There are no winners in this situation.

I hope all the people invloved in this matter are able to recover from this incident and continue with their lives.
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