Summary Offence Caution Required

Summary Offence Caution Required

Charges: Careless Driving, Dangerous Driving – Frankston Magistrates’ Court.

Facts: The client and his friend, both in utes, were driving through a school zone at 3pm. The client’s ute was in front. It was alleged that both of them were doing burnouts and driving dangerously.

The client then drove left around a corner, allegedly fishtailing. The second ute tried to follow suit but crashed into a pole on the median strip.

When the police arrived the client was not at the scene but police obtained his registration number. The client was later charged with Careless Driving and Driving Dangerously.

Results: The driver of the ute that crashed did not make a statement against the client. The informant (investigating police officer) went to the client’s property and immediately started questioning the client in front of his parents.

Fortunately for the client, although he did answer some questions, the informant had not cautioned the client prior to questioning him – a requirement under the law.

In 2008 the law changed in relation to cautioning defendants for summary offences. Under section 138 & 139 of the new Evidence Act 2008 defence lawyers can make an application to exclude evidence that has been improperly obtained.

This does not mean that the evidence is automatically excluded. However in this instance the informant, who was very experienced, cautioned the client after he had already made some admissions.

The experience of the informant indicated that the failure to caution the client at the outset was intentional, not accidental. Therefore it was our view that the evidence relating to the admissions would be excluded. The police still had a case but if this evidence was excluded it would make it difficult for them.

The client was given his options on that basis. On the summary of facts, if accepted by a Magistrate, Dangerous Driving would be made out and the client would be off the road for 6 months minimum.

There was some risk in relation to running the case but ultimately it was up to the client to decide which way to go. The client instructed us to resolve if possible without losing his licence.

Following a case conference and using the potential exclusion of the admission as a bargaining tool, the prosecution were prepared to only proceed on a Careless Driving charge on a plea of guilty. The client was happy with this course and following submissions His Honour imposed a good behaviour bond without conviction and no loss of licence.

The client was an apprentice plumber and needed his licence to complete his apprenticeship, so this was a great outcome for him.