The Court: Moorabbin Magistrates Court
The Lawyer: Tom Woodward
The Charges:
The Allegations:
Our client was driving in an area with poor street lighting; it was nighttime, and the rain was falling heavily. The car travelling in front of our client suddenly veered off to the right, revealing a dark silhouette, which turned out to be a motorcyclist whose bike had lost power at that moment. Our client did not have sufficient time to react and consequently hit the motorcycle. The collision caused the other person to fall off his bike, suffering minor injuries; the bike was damaged.
Police were called to the scene, and our client told police that he did not have enough time to stop. Police proceeded to charge him with Careless Driving.
At Court:
After being charged, the client asked police about his options, prompting the informant to recommend Diversion. The client researched what diversion was and found it to be an appealing outcome in this case. He went to court by himself, thinking this was something he could handle without a lawyer or representation. He spoke with the prosecutor, who provided him with a list of requirements for diversion, including writing a letter of apology to the victim, a letter of gratitude to the informant, and completing a safe driving program.
The client then set out to complete these tasks, and after many months and several court appearances, he finally found himself sitting with the Diversion Coordinator. The interview went well, and just as the client was beginning to feel relieved, he was called back to the counter and advised that the Magistrate had refused diversion. The client appeared in court to make submissions but was unable to persuade the Magistrate to grant diversion. It was at this point that the client decided to consult a lawyer. The matter was adjourned yet again, this time to allow him to obtain legal advice.
The client came in to see one of our solicitors and expressed considerable frustration at the Magistrates’ refusal to grant diversion. Ironically, upon reading the brief and taking detailed instructions from the client, our lawyer advised him that he was, in a sense, lucky that the Magistrate refused diversion because, in this case, it would not have been a good deal, considering the demerit points he stood to lose, and the likelihood of having to compensate the victim.
What our lawyer was able to point out to the client quickly was that, in fact, he had a robust case and should, therefore, plead not guilty.
There is a simple proposition to understand about careless driving, and it is this: just because an accident occurs, it does not necessarily mean that someone was careless. Sometimes accidents happen, and no one is to blame. In this case, there was a suggestion of heavy rain, a slippery road surface and poor visibility that night. Two other drivers had pulled over upon witnessing the accident and gave their contact details to the client. One of these witnesses says the motorcyclist was wearing all black, and when his bike suddenly lost power, he became an almost invisible hazard on the road. The other witness states that at the time, he was driving alongside our client’s car, and everyone was travelling at 30km/hr due to the heavy rain. This witness also reported struggling to see more than 10 meters in front of him. Both of these witnesses then left before the police arrived. The client had this information with him the whole time but did not know how to use it in court.
Our lawyer spoke with these witnesses on the phone and was informed by one of them that he, too, would likely have hit the motorcyclist if he had been in our client’s position due to the poor visibility. That motorcyclist was asking for trouble by not moving off the road quickly enough after his bike broke down.
To further advance the client’s case, our lawyer obtained climate data and rainfall reports from the Bureau of Meteorology covering the day of the alleged offence. The reports were entirely consistent with the heavy rain that night in that area.
Armed with favourable independent witness statements and weather data, our solicitor had a case conference arguing that in all the circumstances, including heavy rain, poor visibility, slippery road surface undermining the effects of braking, the conduct of the motorcyclist, manner of our client’s driving as observed by one witness; that the prosecution would struggle to make out this charge.
The prosecutor conceded that the weather and road conditions were terrible but argued that our client could have avoided the collision had he maintained a proper distance from the vehicle in front of him. The prosecutor then highlighted the fact that the car in front was able to swerve in time to avoid a collision. The problem with this argument was that the vehicle in front of our client had a clear view of the motorcycle before it broke down and was, therefore, in a much better position to take evasive action when the bike suddenly stopped. Our client did not have access to the same information. Also, the test is whether the client exercised a level of care and attention expected of a reasonable driver in those circumstances, not whether he should have been able to swerve away at the last minute simply because the driver in front managed to do so.
The Outcome:
After a lengthy discussion, the prosecutor agreed to withdraw the charge. The client was pleased with the outcome.
This case illustrates the importance of consulting an experienced lawyer early to ensure the best possible outcome. This client almost resolved the matter by way of diversion, which in many cases would be the preferred outcome, but not in this particular instance. Why settle for diversion when you can get an acquittal instead?
