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Skip to 0 minutes and 4 seconds SALLY ANDERSEN: Tim hasn’t actually committed an offense. It’s not an offense to eat a banana at the wheel or, in fact, eat anything at the wheel. But it may be an offense if the eating results in the driver failing to pay proper attention. So if Tim is eating his banana and not looking at what’s going on around him, And there could be a problem.

Skip to 0 minutes and 23 seconds ALAN DAVIS: And this is know as careless driving, which often you hear on the news or the TV or you read about. So it’s careless driving under the Road Safety Act. And that’s when you have fines and penalty points involved, and they can get very, very complicated.

Skip to 0 minutes and 37 seconds SALLY ANDERSEN: Tim could also be liable for failure to maintain proper control of his vehicle.

Skip to 0 minutes and 41 seconds ALAN DAVIS: He would have essentially committed an offense if he could have stopped safely before entering the intersection. That’s the key thing. So often you hear people say oh, well it would have been too unsafe to stop. say if it was raining or if a car was right up behind you.

Skip to 0 minutes and 59 seconds SALLY ANDERSEN: It would’ve caused an accident.

Skip to 1 minute and 1 second ALAN DAVIS: Absolutely.

Skip to 1 minute and 2 seconds SALLY ANDERSEN: But he accelerated.

Skip to 1 minute and 4 seconds ALAN DAVIS: So as Tim had to accelerate through the intersection, I would say that it is likely that he could have safely stopped before entering the intersection, and therefore bottom line is, he would have committed an offense. You don’t need the intention. You don’t need that second half of that magic formula, the MR. You just need the AR, the actual guilty action. That’s all you need the act to sway us. It doesn’t matter what your intention is. Doesn’t matter that you didn’t mean to. It doesn’t matter that you have to run quickly somewhere. The point is you completed the action. and that’s enough for absolute liability. But here in Victoria, it’s split between absolute and strict liability offenses.

Skip to 1 minute and 45 seconds And strict liability offenses is when you have a potential defense, which is honest, reasonable mistake of fact. So again, you don’t need the MR. That isn’t needed. You just need the action. You potentially have a defense, whereas there’s no defense for absolute liability here in Victoria.

Skip to 2 minutes and 5 seconds SALLY ANDERSEN: Or by doing 61 kilometers in a 60 zone, Tim has actually committed an offense. There is no leeway for speed limits. So that means that if you are even just a little bit over the speed limit, you’re still liable under Rule 20.

Skip to 2 minutes and 20 seconds ALAN DAVIS: So even if you misread the speed signs, you are guilty. In fact, it’s been upheld that public safety and low penalties involved makes these really classic absolute liability offenses. Basically, we don’t tend to go to prison for absolute liability offenses. Otherwise, if you think if everybody went to court into that magistrate’s court system, that’s already completely chockablock as it is, and you are arguing because you didn’t have the intention, well, you could be there all day potentially, in the court system. and the money involved with that on both sides. So that’s why you have absolute liability offenses and strict liability offenses, but it tends to be low-level sentencing involved, such as fines or infringement.

Skip to 3 minutes and 4 seconds Even looking or glancing at the screen of the phone is defined as using your mobile phone. So this again, is an absolute liability offense - ignorance of the law is no defense.

Skip to 3 minutes and 19 seconds SALLY ANDERSEN: The first thing in this scenario is that Tim is actually using his phone. There’s no question about that. But there is a question about whether or not the car is actually parked, because the car is stationary. If its parked, it’s permissible for him to use his phone.

Skip to 3 minutes and 35 seconds ALAN DAVIS: Holding the phone is defined as using a phone in accordance. And an SMS texting is a function of the phone in itself. Again, that’s considered using a phone under the regulation.

Skip to 3 minutes and 48 seconds SALLY ANDERSEN: Tim is probably going to argue that he was stopped at the light, therefore he was parked, so it’s permissible for him to use his phone. However, this isn’t the case, because if you look at the road safety rules and the definition of parked, the car is not considered to be parked when it’s stopped at the traffic lights. The car is still running. He is still in control of the vehicle. Therefore, the car is not parked, and he would still be liable for using his phone while driving.

Skip to 4 minutes and 16 seconds ALAN DAVIS: But it has been held, which is interesting, that even rushing to get to court, which is often the case, or hospital is not a valid defense to speeding offenses. You could just wait for the ambulance or be late for court. Why is this? Well, the risk to public safety is so great from using mobile phones and speeding whilst in control of your car that if you were distracted even for that moment, then there could be serious consequences. And the legal position is that the person must be guilty. In Victoria, driving without insurance– except compulsory third party CPT insurance– is not actually an offense. Why is that?

Skip to 5 minutes and 4 seconds Because the CPT– the Compulsory Third Party insurance– is actually obtained here in the state of Victoria when you get a car registration each year. So it’s actually likely that Tim has not committed an offense. Completely different to, say, England and Wales, where you must have insurance, whether it’s third party or fully comprehensive. And if you don’t have insurance, well then, you are guilty.

Case study 1 analysis: Texting Tim

Watch Sally and Alan explore criminal law and the way it operates with their analysis of the “Texting Tim” case study.

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Law for Non-Lawyers: Introduction to Law

Monash University