DRIVING OFFENCES QLD

The Law: Section 328A of the Criminal Code (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The Prosecution must prove the defendant: –

(1) operated or in any way interfered with the operation of a vehicle; 

(2) dangerously;

(3) in any place.

Circumstances of aggravation

(a) while adversely affected by an intoxicating substance; or

(b) while is excessively speeding or taking part in an unlawful race or unlawful speed trial; or

(c) has been previously convicted either upon indictment or summarily of an offence of dangerous operation of a vehicle and causes the death of or grievous bodily harm to another person.

What does it mean to operate or in any way interfere with the operation of a vehicle dangerously?

The Criminal Code (Qld) defines it as:

“operate, or in any way interfere with the operation of, a vehicle at a speed or in a way that is dangerous to the public, having regard to all the circumstances, including—

(a) the nature, condition and use of the place; and

(b) the nature and condition of the vehicle; and

(c) the number of persons, vehicles or other objects that are,

or might reasonably be expected to be, in the place; and

(d) the concentration of alcohol in the operator’s blood or breath; and

(e) the presence of any other substance in the operator’s body.

“Public”

The public includes passengers in a vehicle whether in a public or private place.

“Place”

Place does not include a place being lawfully used to race or test vehicles under a licence or another authority under an Act and from which other traffic is excluded at the time.

What does “dangerously” mean? 

Whether or not a vehicle has been operated or interfered with a vehicle dangerously is an objective test.

In relation to the driving of the vehicle being dangerous, there must be some identifiable feature of the driving that subjects the public to some risk over and above that ordinarily associated with the driving of a vehicle.

What is grievous bodily harm?

Grievous Bodily Harm is defined as:

(1) the loss of a distinct part or an organ of the body; or

(2) serious disfigurement; or

(3) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;

whether or not treatment is or could have been available.

It doesn’t matter if the complainant received treatment for the injury itself. The issue to determine is whether or not the injury itself constitutes grievous bodily harm not taking into account any treatment the complainant receives.

What is excessively speeding?

This means driving or operating a vehicle at a speed more than 40km/h over the speed limit.

What is an unlawful race?

This is a race involving a vehicle in contravention of Section 85 of the Transport Operations (Road Use Management) Act 1995.

What is an unlawful speed trial?

This is a trial of the speed of a vehicle in contravention of Section 85 of the Transport Operations (Road Use Management) Act 1995.

Maximum Penalty: 

♦ 200 penalty units or 3 years imprisonment.

♦  400 penalty units or 5 years imprisonment if the defendant:

(a) at the time of committing the offence was adversely affected by an intoxicating substance; or

(b) at the time of committing the offence is excessively speeding or taking part in an unlawful race or unlawful speed trial; or

(c) has been previously convicted either upon indictment or summarily of an offence of dangerous operation of a vehicle.

♦ 10 years imprisonment if the defendant caused the death of or grievous bodily harm to another person.

♦14 years imprisonment if the defendant caused the death of or grievous bodily harm to another person and the defendant was at the time of the offence:

(a) adversely affected by an intoxicating substance; or

(b) excessively speeding; or

(c) taking part in an unlawful race or unlawful speed trial; or

(d) knew, or ought reasonably to have known, the other person had been killed or injured, and the defendant left the scene of the incident, other than to obtain medical or other help for the other person, before a police officer arrived.

PLEASE NOTE there are certain circumstances where the court must impose imprisonment as part or whole of the sentence.

The Law: Section 408A of the Criminal Code (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant:

(1) unlawfully (i.e. was not authorised, justified or excused at law); 

(2) used (the defendant travelled in it whether as the driver or a passenger); 

(3) any motor vehicle, aircraft or vessel; 

(4) without the consent of the person in lawful possession.

Or

The defendant:

(1) had in their possession; 

(2) any motor vehicle, aircraft or vessel; 

(3) without the consent of the person in lawful possession of it; 

(4) with the intention to deprive the owner or person in lawful possession of it of the use and possession of it either temporarily or permanently.

What is possession?

The prosecution must prove the defendant had control of the vehicle or was capable of exercising control over it. If the vehicle is found on the defendant’s premises, it must be proved that the vehicle was there with the defendant’s knowledge and approval and that the defendant was exercising control over it.

Maximum Penalty:

♦ 7 years imprisonment; or 

♦ 10 years imprisonment if the defendant used or intended to use the motor vehicle, aircraft or vessel for the purpose of facilitating the commission of an indictable offence; or 

♦ 12 years imprisonment if the defendant wilfully destroyed, damaged, removed or otherwise interfered with the mechanism (or part thereof) or other part of or equipment attached to the motor vehicle, aircraft or vessel; or intended to destroy, damage, remove or otherwise interfere with the mechanism (or part thereof) or other part of or equipment attached to the motor vehicle, aircraft or vessel.