Have you been charged with Failure to Nominate the Driver of a Motor Vehicle?
This is a tricky charge. It is often the case that police will charge you with other driving offences such as dangerous driving or careless driving, these will be alternative charges. It is the one offence where you are required to answer who the driver of your vehicle was, you are entitled to answer no comment to the balance of the questions. This is often something that people get confused about. The court of appeal has been clear, there is no right to silence in relation to this question if asked by police in connection with an incident alleged in relation to a motor vehicle where you are the registered owner.
There are a number of issues to consider if you have been charged with Failure to Nominate the Driver of a Motor Vehicle.
- Did you fail to provide information to the police when asked?
- Was the request for information relevant?
- Was the request made by police unreasonable in the sense that it related to an event that was not recent
- Or did you provide the information to the best of your ability
It is an offence against the Road Safety Act 1986 (RSA) section 60 for the owner of a motor vehicle or a relevant nominated person in relation to a motor vehicle, when required to do so by police acting in the execution of duty, to fail to give any information which it is within the power of the person to give and which may lead to the identification of any person who was the driver of the motor vehicle on any occasion or had possession or control of the motor vehicle on any occasion. It is also an offence to fail to make all reasonable enquiries in order to obtain the information requested.
If you have been charged in relation to this offence or you are asked to nominate, you must seek advice prior to doing so. The ramifications could be incredibly severe if you make the wrong choice.
Please read below for more information relating to this charge.
The offence
Subsection 60 of the Road Safety Act 1986.
The prosecution must show that:
- The defendant was required by a police officer to give information that may lead to the identification of a person who was the driver of a motor vehicle; and
- The defendant failed to do so.
The penalty
If found guilty of failure to nominate the driver of a motor vehicle the maximum penalties are –
- 20 penalty units and a 4 months imprisonment if the accident resulted in a person being killed or suffering a serious injury
- 20 penalty units and 2 months imprisonment in all other circumstances.
If you are convicted of the offence the court must cancel any driver licence and learner permit held by a you and disqualify you from obtaining a driver licence or learner permit for, in the case of a first offence, at least 2 years and, in the case of a subsequent offence, at least 4 years.
Will I lose my drivers licence?
It should be noted here that submissions on the issue of conviction are incredible important in relation to this charge as a conviction enlivens mandatory minimum licence provisions (be aware when you click on the meaning of conviction in the Road Safety Act 1986 in your internet browser, it takes you to the wrong section, being the definition of conviction under Part 6A—Impoundment, immobilisation and forfeiture of motor vehicles. This is not the correct definition of the meaning of conviction per Part 6 of the Road Safety Act 1986. Section 7 of the Sentencing Act defines when a sentence can be handed down with or without a conviction. Section 8 of the same act provides guidance in relation to the considerations a member of the judiciary must bear in mind when considering whether to record a conviction. Given how much is riding on this decision and considering that it is completely discretionary, you would be well advised to engage lawyers that understand this area of the law.
The other relevant issue to consider in relation to no conviction being recorded is that you will keep your record clean, read here for more.
Where will my case be heard?
Duty of owner of motor vehicle to give information about driver cases will be heard will be heard in the Magistrates Court.
Questions to consider
- Do you have a defence?
- Did you make reasonable enquires to ascertain the identity of the driver?
- Did you make an honest and reasonable mistake when providing information to the Police?
- If you are pleading guilty, what can you do to minimise your sentence?
What to do next?
Engage a traffic lawyer that understands this legislation, so many lawyers do not. There are always tactical decisions that need to be made when approaching this charge, these decisions should only be made following consultation with an experienced traffic offence lawyer.
If you have been charged with a Failure to Nominate the Driver of a Motor Vehicle and your driver’s licence is important to you, don’t go to court unrepresented. If you are convicted you need to consider how much it will cost you to be disqualified from driving for 2 to 4 years.
We regularly appear in court to represent people charged with these types of offences, if you have been charged or are about to be interviewed, call our office today.
The Legislation
Section 60 Duty of owner of motor vehicle to give information about driver
(1) An owner of a motor vehicle, or a relevant nominated person in relation to a motor vehicle, is guilty of an offence if, when required to do so by a police officer who is acting in the execution of duty, the person fails to give any information which it is within the power of the person to give and which may lead to the identification of any person who was the driver of the motor vehicle on any occasion or had possession or control of the motor vehicle on any occasion or fails to make all reasonable enquiries in order to obtain that information.
(1A) For the purposes of subsection (1) a relevant nominated person means a person nominated in an effective known user statement (within the meaning of Part 6AA) or sold vehicle statement (within the meaning of that Part) as being the responsible person (within the meaning of that Part) in relation to a motor vehicle at the time when the motor vehicle was involved in an offence that is an operator onus offence for the purposes of that Part.
(1B) A police officer who is acting in the execution of duty may require any person whom the police officer believes on reasonable grounds to have had possession or control of a motor vehicle on a particular occasion to give any information which it is within the power of the person to give and which may lead to the identification of any person who was the driver of the motor vehicle on that occasion or had possession or control of the motor vehicle on that occasion.
(1C) A person who, without reasonable excuse, refuses or fails to comply with a requirement made under subsection (1B) is guilty of an offence.
(2) A person guilty of an offence under this section is liable—
(a) if the requirement is made by a police officer who is investigating an accident involving a motor vehicle that resulted in a person being killed or suffering serious injury—to a penalty of not more than 20 penalty units or to imprisonment for a term of not more than 4 months or to both;
(b) in any other case—to a penalty of not more than 20 penalty units or to imprisonment for a term of not more than 2 months or to both—
and on conviction the court must cancel all driver licences and learner permits held by that person and, whether or not that person holds a driver licence or learner permit, disqualify that person from obtaining a driver licence or learner permit for, in the case of a first offence, at least 2 years and, in the case of a subsequent offence, at least 4 years.
(3) For the purposes of this section “owner” means—
(a) the owner or the person in whose name the motor vehicle was registered at the time when the vehicle was being driven by the person about whom the information is sought or at the time when the requirement is made; or
(b) any person who had possession or control of the vehicle at either of those times; or
(c) if the motor vehicle displayed a number plate at either of those times—
(i) the person who, at the time at which the registration number borne by that number plate was last assigned by the Secretary or the corresponding body under a corresponding Act, was the person in whose name the motor vehicle, to which that registration number was assigned, was registered under this Act or a corresponding Act of the Commonwealth or of another State or Territory of the Commonwealth, whether or not that motor vehicle is the same as the motor vehicle about which information is sought; or
(ii) the person whose name is disclosed in the records kept by the Secretary or the corresponding body under a corresponding Act as being entitled, or last entitled, to use or possess that number plate at the time when the vehicle was being driven by the person about whom the information is sought or at the time when the requirement is made.
(4) A requirement under this section may be made orally or in writing.
(5) A written requirement may be sent by post addressed to the person to whom it is made at the person’s home address or at an authorised address (within the meaning of section 163A of the Infringements Act 2006).
(6) A written requirement sent by post to a person at an authorised address (within the meaning of section 163A of the Infringements Act 2006) and returned undelivered to its sender is deemed to be served 7 days after the date specified in the requirement as the date of the requirement, despite it being returned to its sender as undelivered.
(7) Subsection (6) has effect despite anything to the contrary in section 49(1) of the Interpretation of Legislation Act 1984.
