Laws Relating to Driving Conduct that Causes Grievous Bodily Harm in NSW

The driver accused of being responsible for causing the deaths of 10 wedding attendees and the hospitalisation of 20 more by losing control of a bus in the Hunter Valley is facing dozens of additional charges for major traffic offences.

58-year old Brett Andrew Bolton was originally charged with 10 counts of dangerous driving occasioning death and one of negligent driving occasioning death in relation to those who passed away in the incident – which occurred just after 11.30pm on Sunday, 11 June 2023, and involved the bus losing control  at the third exit of the roundabout on Wine Country Drive near the Hunter Expressway off-ramp at Greta in the Hunter Valley.

Additional charges

Police have now filed additional 52 charges of dangerous driving occasioning grievous bodily harm, negligent driving occasioning grievous bodily harm and causing grievous bodily harm by misconduct or negligence in relation to injuries sustained by those who survived the incident, bringing the total number of charges to 63.

According to police, the basis of the charges is that Mr Bolton was driving with excessive speed in the circumstances, including the road conditions at the time, causing the bus to lose control and collide into a guard rail before tipping on its side.

Police further allege witnesses have come forward since the fatal collision to state that Mr Bolton has driven with excessive speed on previous occasions.

Mr Bolton has been granted strict conditional bail and is scheduled to appear before Cessnock Local Court next week.

Dangerous driving occasioning grievous bodily harm

Dangerous driving occasioning grievous bodily harm is an offence under section 52A(3) of the Crimes Act 1900 which carries a maximum penalty of 7 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You were the driver of a motor vehicle,
2. You were involved in an impact that caused grievous bodily harm (GBH) to another, and
3. You were under the influence of alcohol or drugs, or you were driving at a dangerous speed, or you were driving in a dangerous manner.

Aggravated offence

Under section 52A(4) of the Act, the maximum penalty increases to 11 years in prison where the offence is committed in ‘circumstance of aggravation’, which is where:

1. You had a ‘prescribed concentration of alcohol’ in your bloodstream,
2. You exceeded the speed limit by more than 45 km/h, or
3. You were ‘very substantially impaired’ by a drug or drugs.

A ‘prescribed concentration of alcohol’ is a reading of at least 0.15.

You are presumed to have been under the influence of alcohol where you had the prescribed concentration of alcohol in your bloodstream.

A certificate of your alcohol or drug concentration is admissible as evidence as long as the analysis occurred within 2 hours after the impact, unless you are able to prove ‘on the balance of probabilities’ that the concentration was lower at the time impact.

What is a vehicle?

A ‘vehicle’ is defined as:

1. Any motor car, motor carriage, motor cycle, or any other vehicle propelled, wholly or partly, by volatile spirit, steam, gas, oil, electricity, or by any other means other than human or animal power, or
2. A horse-drawn vehicle.

What is an impact?

An ‘impact’ is that which occurs:

1. Between an object or a person and the vehicle,
2. Between an object, including the ground, due to being thrown from the vehicle,
3. With another vehicle or object in, on or near a person,
4. With anything on or attached to the vehicle, or
5. With anything in motion through falling from the vehicle.

It also includes where:

6. A vehicle overturns or leaves the road, or
7. A person falls or is thrown or ejected from the vehicle.

What is grievous bodily harm?

‘Grievous bodily harm’ is defined by the courts as ‘very serious harm’, which includes but is not limited to:

1. Any permanent or serious disfigurement,
2. The destruction of a foetus, other than by a medical procedure, and
3. Any grievous bodily disease.

Statutory defence

The legislation makes it an offence to the charge is that the GBH was not attributable in any way to:

1. Being under the influence of alcohol or drugs,
2. The speed at which you drive, or
3. The manner in which you drove.

Negligent driving occasioning grievous bodily harm

Neligent driving occasioning grievous bodily Harm is an offence under section 117(1)(b) of the Road Transport Act 2013 which carries .

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You drove a motor vehicle,
2. You drove the vehicle negligently, and
3. You caused grievous bodily harm to another as a result.

What is negligence?

You drove ‘negligently’ if you, “departed from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances”.

When determining whether the offence has been committed the court must consider:

1. The nature, condition and use of the road at the time
2. The amount of traffic on the road at the time, or which might reasonably be expected on the road at that time, and
3. Any obstructions or hazards on the road at the time

Maximum penalties

If it is your first major traffic offence in the past 5 years the maximum penalty is:

1. 9 months in prison,
2. A 3 year ‘automatic’ licence disqualification, which the court can reduce to 12 months, and
3. A fine of $2,200,

If it is your second or more major traffic offence in the past 5 years the maximum penalty is:

1. 12 months in prison,
2. A 5 year automatic licence disqualification, which the court can reduce to 2 years, and
3. A fine of $3,300.

 Examples

Examples of negligent driving may include:

1. Causing an accident by failing to keep a proper lookout for others,
2. Allowing a collision to occur by not driving defensively to avoid it, and
3. Endangering others by not paying due care and attention to road rules or conditions.

Examples of conduct that may not amount to negligent driving include:

1. Where an accident was inevitable or unavoidable,
2. Where a previously unknown mechanical defect caused a collision, and
3. Where you became unconscious due to an illness you were not previously aware of.

Causing grievous bodily harm

Causing grievous bodily harm by way of an unlawful or negligent act or omission is an offence under section 54 of the Crimes Act 1900 (NSW) which carries a maximum penalty of 2 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You caused grievous bodily harm to another person, and
2. You did so by an unlawful or negligent act or omission.

The terms ‘unlawful’ and ‘negligent’ are not defined by the legislation.

However, the courts have found that an unlawful act must be a “dangerous act”, and that a ‘negligent act’ is one that exhibits “such a high degree of disregard for the life and safety of others as to be regarded as a crime against the community generally”.

This is a higher test than that which applies to traffic offences, such as negligent driving.

Legal defences

There are a number of legal defences that may apply to the above charges.

These defences include:

1. Necessity,
2. Duress,
3. Automatism, and
4. Self-defence.

In the event you are able to raise evidence of any such defence, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply in your case.

If the prosecution is unable to discharge this onus of proof, you are entitled to an acquittal; in other words, a verdict of not guilty.

Going to court for a serious driving offence?

If you are going to court for a serious driving offence such as one that involves allegations of causing grievous bodily harm, call Sydney Criminal Lawyers anytime on (02) 9261 888 to arrange a free conference with an experienced traffic defence lawyer who will explain the law, advise you of your options and the best way forward, and fight for the optimal