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Friday, 6 November 2009

Legal liability of accompanying drivers

I had a query about my post, Licences and International Students. There, I suggested that the holder of a foreign licence (not being suspended or disqualified; accompanied by an English translation; complying with all other requirements, etc.) should not be considered a learner driver, and consequently would not be bound by the requirements under Reg 213 and 214 (which will become Regs 46 and 47 under the new Road Safety (Driver) Regulations 2009) to display L-plates and be supervised by an accompanying driver.



The question I was asked, which I hadn't turned my mind to, was this: What's the legal liability of accompanying licensed drivers under the Road Safety Act 1986? Are they legally responsible for the misdeeds of a foreign licence holder in the driver's seat? Is such a driver under their supervision, or not?



There's three distict categories of charges which spring to mind: drink-driving, speed offences, and the miscellaneous category of common enterprise offences.



In my view, the appropriate answers are no, no, and maybe



Drink-Driving



Under s 3AA(d), an accompanying driver is taken to be in charge of a motor vehicle.



Section 3AA(1)(d) reads,



(1) Without limiting the circumstances in which a person is in charge of a motor vehicle, the following persons are to be taken to be in charge of a motor vehicle for the purposes of this Act-



(a) ...



(d) an accompanying licensed driver while the person whom he or she is sitting beside is driving or in charge of the vehicle.



Accompanying licensed driver is defined at s 3 as,



accompanying licensed driver means a person, other than a commercial driving instructor acting as such, who is sitting beside a person, who is driving a motor vehicle for which that person does not hold an appropriate driver licence, for the purpose of enabling that person lawfully to drive that motor vehicle on a highway;



For the definition of appropriate driver licence, we need to return to the Road Safety (Driver) Regulations 2009, where the definition provided is as follows,



appropriate licence or permit, for a category of motor vehicle, means a driver licence or learner permit that authorises the holder of the licence or permit to drive a motor vehicle of that category in the jurisdiction or, if issued in another country, the country in which it was issued;


A strict interpretation of these provisions leads to the conclusion that a fully licensed driver sitting beside the holder of a valid foreign licence is not an accompanying licensed driver, even if the holder of the foreign licence is also the holder of a Victorian learner's permit.



This is so regardless of the intention of the parties.



Speeding



Regulation 607 of the Road Safety (Road Rules) Regulations 1999 provides,



607. Accompanying licensed drivers and excessive speed



(1) In this regulation-



(a) excessive speed means a speed described in section 28(1)(a)(i) or (ii)of the Act;



(b) accompanying licensed driver has the same meaning as in the Act.


(2) An accompanying licensed driver must not permit a learner driver to drive a motor vehicle at excessive speed.



Penalty: 5 penalty units.


For the same reasons that were given earlier for drink-driving, the passenger is not deemed an accompanying driver and not liable for the actions of the holder of a valid foreign licence.



Aiding and Abetting



In Proudman v Dayman, Ms Proudman was prosecuted (and ultimately convicted) of permitting an unlicensed driver to drive her vehicle, a specific South Australian offence she was charged with.



Potentially any passenger in a vehicle might be implicated as a principal in a crime under the common enterprise doctrine, but this won't turn on whether or not the passenger is an accompanying driver. Instead, it will depend on whether there's evidence to establish either a prior agreement or an intent on the part of the accused to encourage or assist in the commission of an offence.

The relevant authorities here are Bruce v Williams (1989) 10 MVR 451. It was last considered in a unanimous judgment of the Court of Appeal in R v Le Broc [2000] VSCA 125, where their Honours said



Nevertheless, it cannot, we think, be said that the law with respect to the mental element in aiding and abetting a crime of recklessness is clear beyond argument. It is true that the passage from the joint judgment in Giorgianni set out above and the passages from the other two judgments referred to at that point of these reasons are expressed in unqualified terms. However, there is some room for debate as to the meaning of certain expressions in those passages, such as the meaning of "acts" in the joint judgment and the expression "all the essential facts" in the other judgments. Furthermore, all the judgments recognise that there are some exceptions to the universality of their propositions. For instance, in certain cases the requisite knowledge need not extend to the precise crime which is in fact committed; a person can aid and abet the offence of driving with more than the prescribed quantity of alcohol present in the blood even though the person does not know the concentration of alcohol in the driver's blood; and in manslaughter and culpable driving cases it is not necessary to show knowledge on the part of the aider and abettor that death (or grievous bodily harm) would result. Moreover, the High Court's consideration was not directed to principal offences of recklessness, or indeed to principal offences where any mental state on the part of the principal offender was required. In addition, the reasoning in Giorgianni has been criticised, though such criticism clearly cannot stand in the way of our following faithfully the ratio of Giorgianni.




Drink-driving charges typically require no specific metal state, so the issues identified above are not relevant. Giorgianni v R (1985) 156 CLR 473 was a case of an unsafe vehicle rather than a drunk driver, so while often cited as an authority on aiding and abetting it may be said that the facts of the case do not lend themselves to transferral to other cases, though some general principles may apply. The High Court held that a vehicle owner could be held liable for procuring the commission of an offence, that offence being the driving of a defective vehicle that led to the deaths of other road users.



So the answer here is a maybe.

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