If any of the following are applicable to your circumstance you may have a defence and you should seek legal advice as a matter of urgency.
You weren’t driving
In some cases, the wrong person is charged with an offence. There are a variety of ways in which this can occur. It may be that there was an administrative error on the prosecution’s behalf or perhaps the offender was carrying your identification which they presented to police. Regardless, it is a complete defence to this charge if it can be shown that you were not driving the vehicle.
You were driving with due care
The reality is that sometimes accidents happen in spite of our best efforts to avoid them. If it can be shown that you were driving to the standard of care that is to be expected of a person with your level of skill, you may have a defence to this charge.
You were carrying out your duties as an emergency worker
Section 19A(10) of the Criminal Law Consolidation Act 1935 provides an exclusive avenue of defence for emergency workers. You will have a complete defence to this charge if it can be shown that you were acting in the course of your employment and in accordance with the directions of your employer. You will also be required to prove that you were acting reasonably in the circumstances.
Honest and reasonable mistake of fact (Proudman vs Dayman Defence)
If you genuinely believed that your driving was safe under the circumstances and there is evidence to indicate that it was reasonable for you to hold this belief then you may have a defence to this charge.
It is a complete defence to this charge if we can show that you were acting under duress. That is, you were acting as a result of violence or some other threat, against you. The Court will need to be presented with evidence to show that you were coerced into the act by a third party, effectively rendering you an instrument of someone else’s criminal conduct.
The common law defence of necessity operates where the circumstances at hand (natural or human threats) require you to break the law in order to avoid even more dire consequences. There is, thus, some overlapp with the defence of duress. It will need to be shown that you believed on reasonable grounds that you were placed in a situation of imminent peril. You may have a medical justification or it may be the case that you were acting in the course of protecting yourself or someone else.
Essentially, the Court will need to weigh up the act you have committed against the harm you would have experienced had you not acted in that manner. The Court will aso need to be convinced that the act was proportionate to the potential harm.
The law recognises that in some cases people will not be capable of evaluating the nature and quality of their conduct or more categorically, they will not know what they are doing is wrong. If it can be shown that you were suffering from some sort of mental disease, disorder or disturbance, as distinguished from a mere lack of self-control or impulsiveness, then you may have a defence to this charge.
Mental impairments may be either permanent or non-permanent and may include disorders such as:
- Psychomotor epilepsy
- Cerebral arteriosclerosis