When it comes to traffic offences in Australia, it is useful to have a clear understanding as to the possible defences that one can use to fight the charges. Some common defences include:
- denial of allegations,
- automatism,
- insanity,
- honest and reasonable mistake of fact,
- duress,
- necessity/emergency, and
- mental impairment.
These defences can vary depending on the specific situation and the state in which the offence occurred. Thus, seeking legal assistance from a qualified traffic lawyer is a smart move for you to understand the best possible defence strategy for a particular traffic offence.
Common Defences for Traffic Offences
Here’s a brief discussion for each of the common defences for traffic offences in Australia:
1. Denial of allegations – Although this is a common defence, simply denying the allegations is not an effective defence strategy for a traffic offence in Australia. The burden of proof in court lies with the prosecution, meaning they need to present evidence to prove beyond reasonable doubt that you committed the offence.
2. Automatism – Automatism is the involuntary action performed in a state of unconsciousness not amounting to insanity. Thus, criminal responsibility does not attach to an act done in a state of automatism. (Ryan v The Queen(1967) 121 CLR 205 at 213; R v Falconer (1990) 171 CLR 30 at 39.)
The presumption under the law is that the accused has the mental capacity to act in such a way as to incur criminal liability. This means that the act was done voluntarily. However, when an issue on the voluntariness of such act arises due to automatism, the accused bears an evidential burden of showing a reasonable possibility that the act was not willed.
3. Insanity – The legal test for insanity in Australia is very strict. To successfully claim insanity, you must prove that, at the time of the offence, you were suffering from a mental illness that rendered you incapable of understanding the nature and quality of your actions, or of knowing that those actions were wrong.
Other Defences
4. Honest and reasonable mistake of fact – The defence of honest and reasonable mistake of fact is available for strict liability offences, which do not require the prosecution to prove that the accused intended to commit the offence.
Moreover, the accused must have honestly and genuinely held the belief that they were acting lawfully at the time of the offence. If their belief was dishonest or manipulative, the defence would not apply.
In addition, the belief must be reasonable, judged according to whether an ordinary person in the same circumstances would have held the same belief. Here, the accused must sufficiently prove to the court that they held the mistaken belief on the balance of probabilities (i.e., more than 50%).
5. Duress – Duress involves being forced to commit an offence due to an immediate threat of serious harm or death if you don’t comply. Generally, traffic offences require intent or knowledge, making duress a difficult defence as these elements are often present.
However, as an exception, in specific situations, like going over the speed limit to avoid imminent physical harm to yourself or others, duress might be considered. Hence, if you mistakenly believed your actions were lawful, this could be a more viable defence.
6. Necessity/Emergency – This defence applies when you commit an offence to avoid a greater harm to yourself or someone else. For example, if a person committed a speeding offence to reach a hospital with a critically ill passenger.
On the other hand, the defence of emergency has a more sudden and unexpected element. It applies when you face an immediate and unavoidable danger and commit an offence as the only reasonable way to escape it. To illustrate, swerving onto the shoulder to avoid a collision with a deer.
Examples of Traffic Offences and Possible Defences
Here are some examples of traffic offences and the possible defences:
Dangerous Driving or Careless Driving
Dangerous driving goes beyond simply breaking traffic rules. It involves operating a vehicle in a way that creates a real and immediate risk of serious harm to yourself or others. This can include:
- Speeding excessively
- Ignoring traffic lights or stop signs
- Weaving in and out of traffic
- Driving under the influence of drugs or alcohol or drink driving
- Racing other vehicles
- Driving while fatigued or distracted
Potential defences may include:
- Honest and reasonable mistake: You genuinely believed your actions were lawful due to a misunderstanding of the rules or unclear signage.
- Duress or necessity: You were forced to drive dangerously to avoid a greater harm, such as swerving to avoid a collision with an animal.
Negligent Driving Occasioning Grievous Bodily Harm (GBH) or Death
Negligent driving occasioning GBH or death occurs when a person drives a motor vehicle on a road without the standard of due care and attention reasonably expected of the ordinary prudent driver, causing grievous bodily harm or death to another person
In New South Wales, for example, the penalty for negligent driving is more severe if a person suffers grievous bodily harm as a result of the accident.
There are several possible defences for negligent driving occasioning GBH or death, including:
- Disputing the standard of care: The defendant may argue that they were driving with the standard of care and attention reasonably expected of the ordinary prudent driver.
- Mitigating factors: The defendant may present evidence that may reduce the severity of their actions, such as the road conditions, weather conditions, or the victim’s actions.
- Necessity/Emergency: The defendant may argue that their actions were necessary to avoid a greater harm or emergency.
Driving Without Licence
If you drive a vehicle without a valid driver’s licence, you may receive an infringement notice, demerit points or need to appear in court. In New South Wales, driving without a licence in NSW carries a maximum penalty of a $2,200 fine for the first offence. But if your licence was suspended, cancelled or refused, the maximum penalty is AUD 3,300 for the first offence.
Possible defences for driving without a licence may include lack of knowledge, honest and reasonable mistake of fact, duress, necessity/emergency, or holding a valid interstate or international licence.
However, the availability and applicability of these defences can vary based on the specific circumstances of each case. Seeking legal advice from a qualified traffic lawyer is can help you understand the best possible trial strategy for a particular driving without a licence offence in Australia.
Get Advice from a Traffic Offence Lawyer
The rules of the road can be confusing and ever-changing. Most traffic offenders may just plead guilty and accept the punishment given to them. But what if they had a chance to defend themselves? What if lawyers could have salvaged their situation especially if only minor traffic offences were committed?
JB Solicitors’ competent driving offence lawyers will advocate for you. We can negotiate with prosecutors and judges and build a strong defence on your behalf.
Contact an experienced criminal lawyer or traffic lawyer today.
