What happens if you have been charged with Failing in the Duty of a Driver involved in a Motor Vehicle Accident?

As a Driver, there are legal duties that must be complied with on the road. This especially includes after a motor vehicle accident has occurred. Failing in the duty of a driver is an umbrella term for a variety of driving related offences.

When an accident occurs resulting in injury or damage, a driver must stop and render assistance if applicable. There is also a requirement to exchange information with the driver and report the incident to the nearest police station. If the other driver is hostile you must attend the nearest police station to report the accident. The penalties for this type of offence depend on what has been alleged as well as the circumstances of the accident. More serious accidents with severe injuries or death will incur harsher penalties. In these circumstances, there is a risk of imprisonment for 10 years, which would be heard in the County Court jurisdiction.

There are a number of issues to consider:

  • Were you aware of an accident occurring?
  • Is there any viable defence such as an honest and reasonable mistake?
  • If you intend on pleading guilty, what can be done to mitigate the outcome?

Due to the offence encompassing a number of required duties of a driver and the serious consequences upon a finding of guilt, it is important to speak with a criminal lawyer to determine whether there is a defence to the allegations or advise you on how to mitigate the outcome.

Elements of the Offence

In order to be found guilty, the prosecution must prove that:

  1. The accused was driving or in charge of the vehicle,
  2. The accused was involved in an accident resulting in damage or injury,
  3. The accused failed to stop, render assistance or exchange information.


The penalties for a finding of guilt against s 61 depends on the circumstances of the offending, the severity of the accident and the extent of any injuries or damage to property.

If an accident results in death or serious injury, and the person knew or ought to have known that an accident occurred and the driver does not stop and render assistance, upon a finding of guilty, the driver is liable to 10 years imprisonment or a maximum fine of 1200 penalty units.

If the result of the accident is a death or serious injury of a person and the driver does not exchange details with the other driver or attending Police or if the person leaves the scene and does not report the accident to the nearest Police station, then an accused will be liable for a first offence of a penalty of 80 penalty units and imprisonment for 8 months. A subsequent offence penalty is 240 penalty units or a minimum term of imprisonment of 4 months up to a maximum of 2 years.

The same penalties apply for any driver involved in an accident that results in injury who does not stop and render assistance, exchange details with the other driver or report the accident to the nearest police station forthwith.

Where a motor vehicle accident occurs that does not result in death or injury, any driver that does not comply with driver duties is liable on their first offence to a fine of 5 penalty units or 14 days imprisonment. For a subsequent offence, a fine of 10 penalty units or imprisonment for a minimum 14 days up to 1 month.

MK Law can provide 24/7 legal advice regarding charges of this nature by calling 1800 130 120 immediately.


Am I Facing Licence Suspension if Found Guilty?

Depending on the circumstances of the offending, the Court has both discretion and mandates when it comes to licence loss. In situations where there has been no property damage or injury, the Court has a discretion as to whether it interferes with your licence.

However, if a death or serious injury has occurred as a result of the accident, the Court is mandated to cancel licenses or permits held by the driver.

Upon a finding of guilt or conviction against s 61, if a person has been killed or suffers a serious injury, the Court must cancel all driver licences or permits and disqualify that person from driving for a first offence with conviction of minimum 4 years, or at least 2 years without conviction. Save for extraordinary circumstances, most people facing this charge in light of a death of serious injury will face a term of imprisonment.

For a subsequent offence with conviction, the Court must cancel all licenses and permits for a minimum of 8 years, or at least 4 years without conviction in addition to a likely term of imprisonment.

What Happens Next?

As mentioned earlier, how the matter proceeds depends on the seriousness of the motor vehicle accident and the outcome.

Where the circumstances involve an accident that results in minimal damage or injury, the matter will proceed in the summary jurisdiction of the Magistrates Court.

If a person is killed or seriously injured and the driver knows they were involved in an accident and fails to stop and render assistance, the penalty exceeds the jurisdiction of the Magistrates Court and the matter then proceeds in the Committal stream, eventually being determined in the County Court.

Due to the serious nature of these charges and the significant outcomes that can follow, it is important to get expert legal advice to determine the most appropriate next steps. As a term of imprisonment is a potential risk, if you have been charged with failing in your duty as a driver, contact our office on 1800 130 120 today to discuss your options and find out what MK Law can do to assist you.

MK Law - What Happens Next?


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