Motor Vehicle Offences (Various)

1

JONES

PROSECUTION ALLEGATIONS

Your Honour, on Monday 28th April 2014, Mark Jones was seen driving his blue Holden Barina west along Johnson Street, Watervale. Steve Smith was walking his dog on the northern footpath, heading east. Steve saw Mark’s head look down at his lap and then back out of the windscreen on three occasions as he approached.

Mr Smith estimates that the car was travelling at 70 km/h although the actual speed limit is only 60 km/h. Mr Smith saw that Jones only had his right hand on the steering wheel.

Your Honour, a few moments later, Mr Smith heard a loud bang. He turned around and saw that Jones’ vehicle had been involved in a collision about 200 metres away, at the intersection of Allison Road. Mr Smith could not see if there was a Stop Sign facing Jones’ direction of travel, due to the bushy trees along the roadside.

At the time of the collision, Kate Collins was driving her green Ford Focus south along Allison Road. Ms Collins knows that there is a Stop sign on Johnson Street which would have been facing Jones as he approached.

Ms Collins didn’t slow down as she approached the intersection because she thought that Jones was going to stop. Ms Collins sustained minor injuries that required medical attention while the vehicle sustained damage estimated at $1000.00.

When spoken to by police, they observed an unsent text message on his phone that substantiated the alleged use of the phone whilst driving.

Notes for Defence to consider:

1. To argue for Due Care need to dispense with mobile phone use charge and could do this through submissions about not in fact using a mobile but as a conscientious driver with an exemplary record, was checking his speed as part of routine checks that include checking blind spots. Actual use of the mobile is contested. The text message, while present, was not sent and had been written before he commenced his drive. Admission that these actions did divert attention away from the road, the sign and the intersection. Behaviour not in willful disregard of the law.

1. Speed an estimation

1. Might also be able to argue that stop sign was hidden from view by the bushes.

1. Did fail to give way to right, but nothing more.

1. Remorseful, cooperative and apologetic.

1. Good driving record.
   EDUCATIONAL USE ONLY

SOUTH AUSTRALIA

AUSTRALIAN ROAD RULES - REG 300

300—Use of mobile phones

(1) The driver of a vehicle (except an emergency vehicle or police vehicle) must not use a mobile phone while the vehicle is moving, or is stationary but not parked, unless the driver is exempt from this rule under another law of this jurisdiction.

Offence provision.

Note—

"Emergency vehicle", "park" and "police vehicle are defined in the dictionary.

(2) Subrule(1) does not apply to a driver using a mobile phone if the phone is being used to make or receive a phone call and, while being so used:

(a) is secured in a mounting affixed to the vehicle; or

(b) is remotely operated by means of a device (whether connected to the phone by means of a wire or otherwise):

(i) affixed to the vehicle; or

(ii) worn by the driver in the manner intended by the manufacturer,

and the phone is not being held by the driver.

(3) To avoid doubt, nothing in subrule(2)(b) authorises a person to use a mobile phone by pressing a key on the phone, or by otherwise manipulating the body or screen of the phone, if the phone is not secured in a mounting affixed to the vehicle.

(4) For the purposes of this rule, a mobile phone will only be taken to be secured in a mounting affixed to the vehicle if—

(a) the mounting is commercially designed and manufactured for that purpose; and

(b) the mobile phone is secured in the mounting, and the mounting is affixed to the vehicle, in the manner intended by the manufacturer.

(5) In this rule:

"affixed to", in relation to a vehicle, includes forming part of the vehicle.

"held" includes held by, or resting on, any part of the driver's body, but does not include held in a pocket of the driver's clothing or in a pouch worn by the driver.

"mobile phone" does not include a CB radio or any other two-way radio.

"phone call" does not include a text message, video message, email or similar communication.

"use", in relation to a mobile phone, includes the following:

(a) holding the phone to, or near, the ear (whether or not engaged in a phone call);

(b) creating, sending or looking at a text or video message on the phone;

(c) turning the phone on or off;

(d) operating any other function of the phone.

Road Traffic Act 1961

45—Careless driving

(1) A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.

(2) If a court convicts a person of an offence against this section that is an aggravated offence, the following provisions apply:

(a) the maximum penalty for the offence is 12 months imprisonment; and

(b) the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 6 months, as the court thinks fit; and

(c) the disqualification prescribed by paragraph(b) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.

(3) For the purposes of this section, an aggravated offence is—

(a) an offence that caused the death of, or serious harm to, a person; or

(b) an offence committed in any of the following circumstances:

(i) the offender committed the offence in the course of attempting to escape pursuit by a police officer;

(ii) the offender was, at the time of the offence, driving a vehicle knowing that he or she was disqualified, under the law of this State or another State or Territory of the Commonwealth, from holding or obtaining a driver's licence or that his or her licence was suspended by notice given under this Act;

(iii) the offender committed the offence while there was present in his or her blood a concentration of .08grams or more of alcohol in 100millilitres of blood;

(iv) the offender was, at the time of the offence, driving a vehicle in contravention of section45A or 47.

(4) If a person is charged with an aggravated offence against this section, the circumstances alleged to aggravate the offence must be stated in the instrument of charge.

(4a) It is a defence to a charge of an offence against this section for the defendant to prove that he or she was, at the time of the offence—

(a) carrying out duties as an emergency worker; and

(b) acting in accordance with the directions of his or her employingauthority; and

(c) acting reasonably in the circumstances as he or she believed them to be.

(5) In this section—

"emergency worker" means a police officer or a person who is an emergency worker as defined by the regulations for the purposes of this section;

"employing authority" means—

(a) in relation to a police officer—the Commissioner of Police; or

(b) in relation to a person who is an emergency worker as defined by the regulations for the purposes of this section—the person defined by the regulations as the employing authority for that person;

"serious harm" means—

(a) harm that endangers, or is likely to endanger, a person's life; or

(b) harm that consists of, or is likely to result in, loss of, or serious and protracted impairment of, a part of the body or a physical or mental function; or

(c) harm that consists of, or is likely to result in, serious disfigurement.

46—Reckless and dangerous driving

(1) A person must not drive a vehicle recklessly or at a speed or in a manner which is dangerous to any person.

Maximum penalty: Imprisonment for 2 years.

(2) In considering whether an offence has been committed under this section, the court must have regard to—

(a) the nature, condition and use of the road on which the offence is alleged to have been committed; and

(b) the amount of traffic on the road at the time of the offence; and

(c) the amount of traffic which might reasonably be expected to enter the road from other roads and places; and

(d) all other relevant circumstances, whether of the same nature as those mentioned or not.

(3) If a court convicts a person of an offence against subsection(1), the following provisions apply:

(a) the court must order that the person be disqualified from holding or obtaining a driver's licence—

(i) in the case of a first offence—for such period, being not less than 12months, as the court thinks fit; or

(ii) in the case of a subsequent offence—for such period, being not less than three years, as the court thinks fit;

(b) the disqualification prescribed by paragraph(a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month.

(4) In determining whether an offence is a first or subsequent offence for the purposes of this section, only a previous offence against subsection(1) for which the defendant has been convicted that was committed within the period of five years immediately preceding the commission of the offence under consideration will be taken into account.

(5) It is a defence to a charge of an offence against this section for the defendant to prove that he or she was, at the time of the offence—

(a) carrying out duties as an emergency worker; and

(b) acting in accordance with the directions of his or her employingauthority; and

(c) acting reasonably in the circumstances as he or she believed them to be.

(6) In this section—

"emergency worker" means a police officer or a person who is an emergency worker as defined by the regulations for the purposes of this section;

"employing authority" means—

(a) in relation to a police officer—the Commissioner of Police; or

(b) in relation to a person who is an emergency worker as defined by the regulations for the purposes of this section—the person defined by the regulations as the employing authority for that person.