Have You Been Charged with Failing in the Duty of Driver etc. of Motor Vehicle if Accident Occurs?
Dribbin & Brown Criminal Lawyers regularly represent clients charged with driving and traffic offences. We have offices in Dandenong, Geelong, Melbourne CBD, Ringwood, Ballarat, Frankston, Moorabbin and Werribee.
We regularly represent clients charges with failing to stop; failing to report; failing to exchange details as they are required to do as a driver.
There are a number of issues to consider if you have been charged with this offence.
- Can the prosecution make out their case?
- Were you involved in an accident?
- Did you stop to assess the damage or check for possible injury to another person or an animal?
- What sort of damage or injury occurred?
- Did you attempt to render assistance?
- Did you provide your details to relevant persons?
- Were there any injuries? This can impact the penalty
Pursuant to section 61 Road Safety Act 1986 (RSA) there are certain duties that a driver of a motor vehicle has if an accident occurs. When a driver is involved in motor vehicle accident and any person is injured or any property, including animal, is damaged the driver must stop. And if necessary and possible the driver must render assistance. The driver is also required to provide information to relevant persons either at the scene or the nearest police station. Depending on the circumstances the penalties can be severe, if a person is killed or seriously injured the offending driver may face a lengthy term of imprisonment it they knew or ought reasonably have known that the incident occurred and a person sustained life-threatening injuries.
As you can see there are a number of different scenario’s contained within this charge, it can be confusing to those not familiar with traffic law in Victoria.
Please read below for more information relating to this charge.
The offence
Section 61 of the Road Safety Act 1986.
The prosecution must show that:
1. The defendant was driving or in charge of a motor vehicle;
2. The defendant was involved in an accident that resulted in damage to property or and injury to an animal or person; and
3. The defendant failed to stop, assist or provide information.
The penalty
If found guilty of failing in the duty of driver etc. of motor vehicle if an accident occurs, the maximum penalty will depend upon the severity of the outcome of the accident and the driver’s actions after the event. There are a number of scenario’s as follows;
- If as a result of an accident a person is killed or suffers serious injury, and the driver of the motor vehilce knew or ought reasonably to have known that the accident had occurred and had resulted in a person being killed or suffering a serious injury and the driver did not stop and render assistance the maximum penalty is 10 years imprisonment or a fine of 1200 penalty units.
- If when a person was seriously injured or killed and the the driver did stop but failed to provide information to police or less serious damage occurred, and the driver failed to stop the maximum penalty is 8 months imprisonment or 80 penalty units for a first offence. For a subsequent offence it is a 2-year term of imprisonment and 240 penalty units.
- If no person is killed or suffers injury as a result of the accident the maximum penalty is 14 days imprisonment or 5 penalty units. For a subsequent offence the maximum is 1 month of imprisonment or 10 penalty units.
In relation to licence loss:
Section 28 of the Road Safety enlivens discretion regarding all of the subsections in section 61 but there are some mandatory minimum periods off the road that must be imposed by the magistrate if certain conditions are met.
If a person is killed or suffers serious injury as a result of the accident, the court must disqualify the driver from driving for a minimum of 4 years if a conviction if recorded and at least 2 years if no conviction is recorded. For a subsequent offence, at least 8 years if a conviction is recorded and at least 4 years in any other case.
Please be aware, not only can the issue of conviction be relevant in terms of licence loss, it is now also relevant regarding whether an accused person receives a record. This is due to the operation of the spent conviction legislation, passed in Victoria.
Where will my case be heard?
Failing in the Duty of Driver etc. of Motor Vehicle if Accident Occurs cases will be heard will be heard in the Magistrates Court.
Questions to consider
- Do you have a defence?
- Did you know an accident had occurred? Honest and reasonable mistake may be an available defence.
- If you are pleading guilty, what can you do to minimise your sentence?
- What to do next?
More commonly than not this charge involves someone that has hit another car in the shopping centre car park and failed to exchange details. In this circumstance, licence loss per section 28 of the Road Safety Act is enlivened and a magistrate can and often will interfere with a defendant’s driver’s licence. If you value your driver’s licence, you should not go to court unrepresented, Dribbin & Brown are experienced traffic lawyers that know how to achieve the right type of outcome in these cases, if you have been charged you should call our office today.
The Legislation:
Section 61 Duty of driver etc. of motor vehicle if accident occurs
(1) If owing to the presence of a motor vehicle an accident occurs whereby any person is injured or any property (including any animal) is damaged or destroyed, the driver of the motor vehicle—
(a) must immediately stop the motor vehicle; and
(b) must immediately render such assistance as he or she can; and
(c) must at the scene of the accident as soon as possible give his or her name and address and also the name and address of the owner of the motor vehicle and the identifying number of the motor vehicle and, in the case of an automated vehicle, state whether it was operating in automated mode at the time of the accident—
(i) to any person who has been injured or to the owner of any property which has been damaged or destroyed; or
(ii) to a person representing the injured person or the owner of the property; and
(d) must at the scene of the accident as soon as possible give those names and addresses and the other information required under paragraph (c) to any police officer who is present; and
(e) if any person is injured and no police officer is present at the scene of the accident, must as soon as possible report in person full particulars of the accident at the police station that is most accessible from the scene of the accident if that station is open and, if it is not open, at the next most accessible station; and
(f) if any property is damaged or destroyed and neither the owner of the property nor any person representing the owner nor any police officer is present at the scene of the accident, must as soon as possible report in person full particulars of the accident at the police station that is most accessible from the scene of the accident if that station is open and, if it is not open, at the next most accessible station.
(2) If a motor vehicle which has been left standing on a highway moves of its own accord from the position in which it was left and is involved in an accident whereby any person is injured or any property (including any animal) is damaged or destroyed, the person who left the motor vehicle so standing must as soon as possible after becoming aware of the accident comply as far as the circumstances permit with the requirements of subsection (1).
(3) If—
(a) as a result of an accident involving a motor vehicle a person is killed or suffers serious injury; and
(b) the driver of the motor vehicle knows or ought reasonably to have known that the accident had occurred and had resulted in a person being killed or suffering serious injury; and
(c) the driver of the motor vehicle does not comply with the requirements of paragraph (a) or (b) of subsection (1) in relation to the accident—
the driver is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum) or a level 5 fine (1200 penalty units maximum).
(4) If—
(a) as a result of the accident a person is killed or suffers serious injury then a person who contravenes paragraph (c), (d) or (e) of subsection (1) is guilty of an offence; or
(b) as a result of the accident a person is otherwise injured then a person who contravenes any provision of this section is guilty of an offence—
and liable for a first offence to a penalty of not more than 80 penalty units or to imprisonment for a term of not more than 8 months and for a subsequent offence to a penalty of not more than 240 penalty units or to imprisonment for a term of not less than 4 months and not more than 2 years.
(5) If no person is killed or suffers injury as a result of the accident then a person who contravenes any provision of this section is guilty of an offence and liable for a first offence to a penalty of not more than 5 penalty units or to imprisonment for a term of not more than 14 days and for a subsequent offence to a penalty of not more than 10 penalty units or to imprisonment for a term of not less than 14 days and not more than 1 month.
(6) On conviction of a person for, or finding a person guilty of, an offence against this section, if a person is killed or suffers serious injury as a result of the accident, the court must cancel all driver licences and learner permits held by the convicted person and, whether or not that person holds a driver licence or learner permit, disqualify that person from obtaining a driver licence or learner permit for—
(a) in the case of a first offence, at least 4 years if a conviction is recorded and at least 2 years in any other case; and
(b) in the case of a subsequent offence, at least 8 years if a conviction is recorded and at least 4 years in any other case.
(7) If a person who is convicted or found guilty of an offence against any provision of this section has at any time been convicted or found guilty of an offence against another provision of this section or any previous enactment corresponding to any of those provisions, the conviction for, or finding of guilt of, the offence against that provision is to be taken to be a conviction for, or finding of guilt of, a subsequent offence.
(8) The specifying by subsection (3) of fault elements for an offence against that subsection is not intended to affect the question of whether fault elements are required for any other offence against this section or any other provision of this Act.
(a) as a result of the accident a person is killed or suffers serious injury then a person who contravenes paragraph (c), (d) or (e) of subsection (1) is guilty of an offence; or
(b) as a result of the accident a person is otherwise injured then a person who contravenes any provision of this section is guilty of an offence—
and liable for a first offence to a penalty of not more than 80 penalty units or to imprisonment for a term of not more than 8 months and for a subsequent offence to a penalty of not more than 240 penalty units or to imprisonment for a term of not less than 4 months and not more than 2 years.
