Drunk, unaccompanied L plater kills 2 ppl & escapes charges

[Ross]

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Young 17yo guy at a party in a paddock in reigonal NSW gets in a vehicle after drinking all night and then runs over and kills 2 people sleeping in the paddock. He isn't charged due to a variety of reasons, the main one being (this could potentially affect MTBers) a loophole in the law. There is no provision in NSW for a person who has caused a death through negligent driving to be charged if the accident "did not occur on a road or road-related area".

Also the police investigation into the incident was bungled, the extent of his intoxication was not known because the alcoliser used to test him was not properly calibrated.

It had been strongly criticised on multiple grounds during the inquest, including that Rhys Colefax is the son of a police officer who at one time served at Orange police station – the command where the investigation was carried out.

The officer in charge of the investigation knew the teenager's father but did not advise his superiors of a possible conflict of interest, Ms Freund said.

Neither he nor any other officer took a statement from Rhys Colefax after the accident, and subsequent media statements issued by NSW Police indicated that alcohol had not been a factor.

There is no mention in the article if there have been any traffic charges bought against him (reckless/dangerous driving, driving without appropriate licence etc etc). IMO he should never be allowed to drive a motor vehicle, ever.

[il padrone]

It all sounds like a truly terrible, terrible tragedy.

Wihout knowing a great deal more of the facts of the incident it is not possible to cast too many stones. I could imagine the scenario where two people could be sleeping near a vehicle and a driver may start the car and reverse over them without being aware of their presence. Not saying this is the case, but my advice - never sleep on the ground near to vehicles that you have not got the keys to, nor near possible driving pathways.

Re. other traffic charges - as the coroner mentioned, not possible because he was not driving on a road or road-related area. I'd like to know what the rules are in Victoria that allow such private-land incidents to be prosecuted . The Victorian Road Rules only apply to roads and road-related areas.

[macca33]

If this scenario was to play out in Victoria, the problem faced is proving that the actions of the young bloke were reckless (a conscious and unjustfied disregard of a substantial risk that death / serious injury to another person may result from his driving), or negligent (his actions demonstrate that he unjustifiably failed, to a gross degree, to observe the standard of care that a reasonable person would have observed, in all the circumstances), once the alcohol levels were discarded. With people sleeping in a darkened paddock at night, it would prove difficult to prove the above (whether or not evidence of alcohol influencing his actions in the case), given that defence would argue that it is not reasonable to expect people to be asleep in a paddock. I do not know whether there were designated areas, etc, so cannot speculate as to the situation. Also, not knowing all the circumstances makes it difficult to comment with any authority, suffice to say that it appears mistakes may have been made, on the back of a tragic outcome for the victims and their families.

cheers

[human909]

It doesn't seem clear to me that road laws apply to private accessed private property. (Though I am aware that under some circumstances they do apply) Either way this is a tragic accident. It should be treated no differently from other tragic accidents involving gross negligence towards others. Though with the available information it isn't clear that there was gross negligence.


Also I don't know why discussion of 'L plater' and 'unaccompanied' is being bandied about. Thousands of kids and adults across Australia use motor vehicles on private properties without license, registration, or being accompanied.

[Summernight]

Also I don't know why discussion of 'L plater' and 'unaccompanied' is being bandied about. Thousands of kids and adults across Australia use motor vehicles on private properties without license, registration, or being accompanied.

Agreed. Absolutely tragic circumstances, but on private property different rules apply. That doesn't mean he should get away scot free, but I don't think this is a 'loophole' as they call it. I rode a motorbike on a rural private property before I ever got my motorbike licence. That's how I initially learnt basic control.

[thecaptn]

A drunken bogan ran over and killed 2 other bogans in a paddock, what a loss

[human909]

A drunken bogan ran over and killed 2 other bogans in a paddock, what a loss

Your powers of judgement are amazing to conclude that somebody sleeping in a paddock is a bogan.

[Mulger bill]

...given that defence would argue that it is not reasonable to expect people to be asleep in a paddock...

So the defence has never been to a bush BnS ball or indeed any "paddock party"? Drunken participants WILL sleep wherever they crash and crash wherever they might be when their body cries "enough", ask me how I know...

[thecaptn]

A drunken bogan ran over and killed 2 other bogans in a paddock, what a loss

Your powers of judgement are amazing to conclude that somebody sleeping in a paddock is a bogan.

Thank you Watson

[find_bruce]

...given that defence would argue that it is not reasonable to expect people to be asleep in a paddock...

So the defence has never been to a bush BnS ball or indeed any "paddock party"? Drunken participants WILL sleep wherever they crash and crash wherever they might be when their body cries "enough", ask me how I know...

Not always for sleep either Sadly not the first time people have been run over & killed or seriously injured in such circumstances

[il padrone]

A drunken bogan ran over and killed 2 other bogans in a paddock, what a loss

Interesting that you established with some level of certainty (in your mind) that the driver was drunk, in view of the fact that the police and coroner were not able to do this

[thecaptn]

A drunken bogan ran over and killed 2 other bogans in a paddock, what a loss

Interesting that you established with some level of certainty (in your mind) that the driver was drunk, in view of the fact that the police and coroner were not able to do this

Yeah I know it's amazing how easily I worked that out.

[singlespeedscott]

Reminds of some of the B&S balls I went to in my youth. Without the the death.

[Ross]

Interesting responses by some of you. people saying we don't have all the facts so we can't make judgement. People were quick to make judgments of the cement truck driver that killed that guy recently, without knowing all the facts. It seems because a cyclist is not involved in this incident then people aren't as sympathetic to the victims or as damning toward the perpetrator.

I have no connection with anyone in this news story, I just find this incident shocking and am deeply saddened by it.

On another note, I think it is silly to have different road rules for different states. Why can't they all be the same?

[Ross]

A drunken bogan ran over and killed 2 other bogans in a paddock, what a loss

Interesting that you established with some level of certainty (in your mind) that the driver was drunk, in view of the fact that the police and coroner were not able to do this

It was reported that he was drinking all night. AFAIK it takes two standard drinks per hour to get an average person up to the legal BAC and then only one per hour after that to keep them there. Then there is the matter of the BAC for L plate drivers which i believe to be zero. So he'd only need to virtually read the label on the can to be over the limit.

[wombatK]

On another note, I think it is silly to have different road rules for different states. Why can't they all be the same?

They pretty much are the same - all are based on the Australian Road Rules 2008, with a few minor amendments made by
the more truculent states.

As for the original incident, you have to ask why was it not an offence against the criminal law of manslaughter ?

Otherwise, anyone could bump off an enemy by simply running over them in a paddock or yard - although you might
have to spend a bit of time getting them drunk first.

Despite what the coroner has said, it's hard to have any confidence in the police investigation or the coroner's view of it.
Even less to have confidence in the police whose duty it was to ensure the alcoholiser testers were properly
calibrated and fit for duty.

The report says the coroner said it was "unlikely" Rhys will be charged. If there is the remotest possibility of a
manslaughter charge, it ought to be pursued. Who knows, 12 honest men might take a different view to the
police and legal club that's been involved to date.

My sympathies are with the victim's families entirely.

[find_bruce]

As is so often the case, the reports are neither complete nor accurate. If you are interested in this matter, you can read the Coroner's Report

Points that do not appear in the reports

• The breath test gave a zero reading
• Despite the zero breath test the driver was arrested for the purpose of blood and urine testing - his blood was found to contain 0.039g of alcohol per 100mL of blood
• There is no law requiring a driver on private property to be licenced, accompanied or sober, nor even for the vehicle to be registered.
• After hearing evidence from 23-27 May 2011 the Coroner formed the view that the evidence was capable of satisfying a jury beyond reasonable doubt that the driver of the motor vehicle that ran over and crushed both Eliza and William was guilty of the indictable offence of drive in a manner dangerous cause death.
• The Director of Public Prosecutions declined to prosecute the driver under s. 52A(1) of the Crimes Act 1900 for dangerous driving occasioning death

The issue in this case is not the road rules - by definition they apply only to roads & road related areas, which this was not. It is an application of the general criminal law. I agree with the coroner that the appropriate offence - dangerous driving - was available & I do not understand why the DPP chose not to prosecute. Wombat if the DPP is not going to prosecute for Dangerous Driving causing death, there is not the remotes possibility of a manslaughter charge.

[wombatK]

A

The issue in this case is not the road rules - by definition they apply only to roads & road related areas, which this was not. It is an application of the general criminal law. I agree with the coroner that the appropriate offence - dangerous driving - was available & I do not understand why the DPP chose not to prosecute. Wombat if the DPP is not going to prosecute for Dangerous Driving causing death, there is not the remotes possibility of a manslaughter charge.

Thanks FB - I hadn't bothered looking for the coroner's report - thought they weren't routinely published, but rather only when there
is some significant public interest at stake.

As a non-lawyer, I find it very hard to follow the decisions here - and how the unwillingness to prosecute Dangerous Driving would mean you could not
prosecute a more grave offence.

Following what the DPP chooses to do seems to be almost impossible - AFAIK his decisions are cloaked in secrecy. Is he answerable to someone
who should/would be looking at it ?

Cheers

[malnar]

This case was the subject of last Monday night's ABC 4 Corners program (21/10). One of the parents of the deceased found a photo on facebook of the driver at the party holding a stubby. He was taking people on joyrides on the nearby roads earlier in the night. Even though he was only 17, it was stated that he owned the (high powered) ute (think I saw an XR8 badge). The swag was set up near a fence, well away from the parked cars. A witness said he reversed in the dark without lights on and then was revving. He possibly thought he was bogged in mud....

It was clear that the parents are going to fight hard until they feel they get some justice. FWIW the deceased were very attractive and apparently bright & full of potential.

[Xplora]

There is always a civil case to be made. I would expect that a good lawyer would arrange to bankrupt the kid and perhaps their parents (because what parent wouldn't spend their money to fight it?)
The DPP is answerable to God, and by golly, seems that a lot of DPPs will have a lot to answer for on Judgment Day.

A lot of common decency relies on trusting those around you. If you can't trust, you shouldn't be there.

[im_no_pro]

As is so often the case, the reports are neither complete nor accurate. If you are interested in this matter, you can read the Coroner's Report

Points that do not appear in the reports

• The breath test gave a zero reading
• Despite the zero breath test the driver was arrested for the purpose of blood and urine testing - his blood was found to contain 0.039g of alcohol per 100mL of blood
• There is no law requiring a driver on private property to be licenced, accompanied or sober, nor even for the vehicle to be registered.
• After hearing evidence from 23-27 May 2011 the Coroner formed the view that the evidence was capable of satisfying a jury beyond reasonable doubt that the driver of the motor vehicle that ran over and crushed both Eliza and William was guilty of the indictable offence of drive in a manner dangerous cause death.
• The Director of Public Prosecutions declined to prosecute the driver under s. 52A(1) of the Crimes Act 1900 for dangerous driving occasioning death

The issue in this case is not the road rules - by definition they apply only to roads & road related areas, which this was not. It is an application of the general criminal law. I agree with the coroner that the appropriate offence - dangerous driving - was available & I do not understand why the DPP chose not to prosecute. Wombat if the DPP is not going to prosecute for Dangerous Driving causing death, there is not the remotes possibility of a manslaughter charge.

Now now, no letting the truth get in the way of a good story....



And before someone jumps up and down, no I am not suggesting that what happened was in any way good. As previously pointed out it is nothing short of tragic. And has nothing to do with road rules or licensing IMHO. And the connection to cycling advocacy is feeble at best.

[winstonw]

I recall the story mentioned the paddock in which the 2 were killed is legally able to be defined as a road related area, because there were 60 odd cars parked in it, and there was an opening in a fence to park there.

No matter, the appalling thing about this case is the lax attitude of the police. The breathylizer unit was deemed to be faulty and sent away for repair a few days later. Makes me wonder if every police unit carries a faulty one to test mates and their offspring with.

[Ross]

Even though he was only 17

Isn't it illegal to drink alcohol when you are under 18yo? Shouldn't matter if breathalyser was buggered or not, shouldn't matter if his BAC was .000000001 or 1.000000, if the officer can smell alcohol on his breath then an offence has occured, right? Or perhaps the BAC doesn't apply because it's a paddock, not a road? But even if the guy wasn't driving, any minor <18yo drinking any alcohol is committing an offence, regardless of whether the person is on private property.Whoever organised the party would have a duty of care to make sure participants were either 18yo> or if <18yo were attending then make sure they have no access to alcohol.

[Xplora]

It is not illegal to drink under 18. It is illegal to a great number of things with booze and minors, but they can drink it without fear of personal prosecution.
No breathalyser = no proof. That's my guess. Some people can do the roadside DUI tests scotched out of their mind, others can barely do them sober.
An offence is likely to have occurred if the cop smells booze, but that's just one word against another. A cop is subject to the same scrutiny regarding he said she said in court as you and me.
Duty of care is a term related to civil actions, not necessarily criminal ones. It's a country area, a paddock. The same rules and laws for public roads don't apply to them because it's both impractical, immoral and impossible to enforce for most situations. There is nothing wrong with a 13 year old kid driving across a rural property if they've been trained to do so by the parents. Farmers are in a different situation to the rest of us. - that said, duty of care IS relevent for some crimes, and you're bang on the money that an offence could have been slapped on the driver despite the many loopholes.

I don't disagree with some of your points, but your understanding of our legal system has some BIG holes. Morality and decency is not the law. It merely influences it.

[im_no_pro]

Even though he was only 17

Isn't it illegal to drink alcohol when you are under 18yo? Shouldn't matter if breathalyser was buggered or not, shouldn't matter if his BAC was .000000001 or 1.000000, if the officer can smell alcohol on his breath then an offence has occured, right? Or perhaps the BAC doesn't apply because it's a paddock, not a road? But even if the guy wasn't driving, any minor <18yo drinking any alcohol is committing an offence, regardless of whether the person is on private property.Whoever organised the party would have a duty of care to make sure participants were either 18yo> or if <18yo were attending then make sure they have no access to alcohol.

Varies from state to state a little, but in NSW in this particular instance I would say no it isnt given it occurred on private property.

Offences relating to consumption etc of liquor by minor
118 Offences relating to consumption etc of liquor by minor

(1) Minor not to obtain, consume or carry away liquor A minor must not:
(a) consume liquor on licensed premises, or
(b) consume liquor on the premises of an unlicensed restaurant unless the minor consumes the liquor in the company of, and with the permission of, his or her parent or guardian, or
(c) obtain, or attempt to obtain, liquor for consumption on licensed premises, or
(d) carry liquor away, or attempt to carry liquor away, from licensed premises unless the minor was ordered or requested by another person to carry the liquor away from the licensed premises.
Maximum penalty: 20 penalty units.