Careless Driving ( Section 65 of the Road Safety Act )

We frequently defend careless driving charges under section 65 of the Road Safety Act 1986 ( Victoria).  A charge of careless driving is often combined with other charges as it covers a large variety of circumstances. We have represented thousands of clients charged with careless driving, as our sole focus is traffic law and as 99% of what do is defend driving charges. This charge can be a “standalone” charge, but is often combined with other charges. It is important to note that you cannot go to jail for careless driving in Victoria.

However, technically, the court has the power to take your licence indefinitely as there is no maximum time set by the legislation. Our aim is to avoid a licence loss for this offence. We almost always retain our clients’ licences. There is usually also a fine imposed by the court for our clients, of under $1000, if found guilty of this offence. 

 Definition of Careless Driving

Careless driving is when a driver fails to exercise the “degree of care and attention that a reasonable and prudent driver would exercise in the circumstances” ( Simpson v Peat [ 1952 ] 2 QB 24 at 27 ). Whether the driver drove carelessly must be determined by the particular facts and circumstances [ Pearcy v Elidemir (unreported SC(Vic), Beach J, No 8826 of 1990, 4 February 1991, BC9102891 ].

In a careless driving case we must assess the driving as well as other circumstances.

 Careless driving can include the following:  

·       Inattention 

·       Microsleep  

·       Falling asleep 

·       Looking at your phone 

·       Changing a song on your phone or stereo

·       Being distracted by someone in your car 

·       Failing to navigate a corner or bend 

·       Being overloaded in a passenger car so        that you cannot see out 

·       Swerving to avoid an animal but hitting      something else 

·       Insufficient distance between vehicles          [ Burke v Traill-Nash (2002) 36 MVR 151]

It is important to remember, that just because there has been an accident, it doesn’t mean you have been careless. [ Derrick v Cheung (2001) 181 ALR 301 ].

 This offence and failing to have proper control of a vehicle have a high degree of overlap. We will usually try to negotiate down to the lower charge of failing to have proper control, but sometimes careless driving is the correct charge. 

 Should you plead Not Guilty

 If there is a valid defence, you should plead not guilty. Always get expert legal advice before deciding what you ought to plead. We are Victoria’s only dedicated traffic law experts, so you know you are getting the best advice.

The following are defences to a careless driving charge:

1.        You were not the driver of the car;

 2.        You were not driving carelessly;

 3.        Necessity [ Bayley v Police (2007) 40 MVR 376 ];

 4.        The police cannot prove without a reasonable doubt that you were driving carelessly;

 5.        Latent mechanical defence ( R V Spurge [1961} 2 QB 205 ). You must not have known about the defect ( R v Millar (Contractors) Ltd [1970] 2 QB 54 ) and the defect results in a sudden total loss of control and is no way due to any fault on the part of the driver.

 6.        A minor and common error of judgement ( such as reversing into or bumping into a stationary vehicle behind whilst attempting to reverse into a parking space ) is not careless driving [ Lajos v Samuels (1980) 26 SASR 514 Jacobs, sitting alone]

In the case of Waldie v Cook (1988) 91 FLR 413, the driver was charged with driving without due care (a similar offence). The driver could only remember driving through hills and then he could only remember that his car had flipped. There were marks on the road indicating the path his car took and he was found lying next to his badly damaged car. The court held that the driver was not required to give an explanation and that the evidence did not show beyond a reasonable doubt that his driving was without due care.

This case demonstrates that when you are involved in an accident and the police question you, you have the right to remain silent and to give a no comment interview and this may benefit your case. You still have to provide the police with your details such as your name, date of birth, address, licence and registration details. But, you do not have to answer questions about how an incident happened.

 When you receive your Charge to go to Court

 Normally, you ought to receive a charge to go to court about 4-8 weeks after the incident.

You could scan all the pages and send them to us for a free initial assessment of your case ( info@williamarcher.com.au).

We will carefully read your Charge and Summons, watch any video footage and look at all the evidence including what you say has occurred and then assess whether in our legal opinion you ought to plead guilty or not. Ultimately, it is your decision whether you plead guilty or not, we will be guided by your decision. 

 As with failing to have proper control, there is no compulsory loss of licence when you are found guilty of careless driving.  The court has a general power to take your licence under section 28 of the Road Safety Act 1986 for careless driving.

These are the factors that they will take into account when deciding on the penalty for careless driving : 

·       The nature of your driving 

·       Was anyone injured 

·       Did you stop and help if there was a crash 

·       Your previous driving history 

·      Was it deliberate or a mistake 

Penalties for Careless Driving

The penalties for careless driving are as follows: 

1.        Up to 12 penalty units (maximum $2,371.08) for a 1st offence;

2.        Up to 25 penalty units (maximum $4,939.75) for subsequent offences

3.        Possible impoundment of your vehicle;

4.        Possible loss of licence (no maximum is set);

5.        You cannot go to jail for this offence;

6.        The Magistrate can convict you for this offence and you could have a permanent criminal record.

7.        Diversions, only if recommended by the prosecutor ( this depends on the Magistrate and the specific Magistrates’ Court your case will be heard at ) are an opportunity to avoid a criminal record.

Possible Outcomes on a Plea of Guilty

For a charge of careless driving, in our experience, we would aim to:
 

1.        Keep your licence;

 2.        Obtain a fine of about $800-$1000;

3.        Obtain a no conviction.

As with all our advice, this is based on the result that we would achieve given our exclusive experience in this area and knowledge of the courts. Every case is different and we would need to consider the circumstances of your case.

There will also be three demerit points loss under the ROAD SAFETY (DRIVERS) REGULATIONS 2019 - SCHEDULE 3, Item 19 but that is not decided by the Court.  VicRoads will apply them at the conclusion of your court case. 

 Careless Driving Cases We Have Defended:

1.     Case Study for two charges including careless driving  

The Court: Online Magistrates’ Court 

The Date:   April 2025 

The Charges:  

1.        Road Safety Act 65 – driving a motor vehicle carelessly  

2.        Road Safety Road Rules 59(1) – entering the intersection with the traffic lights showing a red light  

Possible penalties our client was facing:  

Charge 1: 

 A fine of up to $2,371.08  

 A loss of licence  

Charge 2:  

 A fine of up to $1,975.90  

 The Facts: 

 There were 2 pedestrians who were witnesses and who started crossing the intersection as the lights turned green. Approximately five seconds after the light turned red, our client entered the intersection against the red light. The witnesses crossing the road had to take evasive action to avoid our client. Our client struck a vehicle coming through the intersection, causing the driver of the vehicle to strike her head on her driver’s side window with such force that the glass shattered.  

 Our client waited at the scene for emergency services to arrive, with the driver of the other vehicle being taken to Footscray Hospital in an ambulance.  

Negotiations with police prior to court:  

 We approached the prosecution to negotiate the charges. We negotiated to withdraw charge 1, careless driving, and plead guilty to charge 2. This was on the basis that both the charges were for the same incident.  

Result in court:  

 We pleaded guilty to charge 2, with charge 1 being withdrawn by the prosecution. The court gave our client a fine of $494 without conviction and she did not lose her licence. Our client was very pleased with the result.  

 2.     Case Study for Careless Driving – Moorabbin Magistrates’ Court -March 2025

The Court:     Moorabbin Magistrates’ Court  

 The Date:       March 2025  

 The Charges:  

·      Road Safety Act Section 65 – driving carelessly  

Possible penalties our client was facing:  

Under Section 65 of the Road Safety Act, a person found guilty for a first offence is liable for a fine of up to $2,371.08 and a loss of licence for a period at the discretion of the Magistrate. 

Facts of the case:   

Our client was on their way to work at 6:20AM. Our client became drowsy at the wheel and had a micro sleep, which caused his ute to hit the gutter and smash into a nearby power pole. Our client’s vehicle spun 180 degrees, causing extensive damage to the vehicle and the power pole, where a live cable loosened.  

Result in court: 

 We recommended that our client plead guilty to the singular charge. In court, the client received a fine of $500 without conviction. The client’s licence was not interfered with. This was a low level fine for the charge and the client’s licence was not impacted, which they were pleased with as they were doing an apprenticeship.

3.     Case Study for drink driving and careless driving -Online Magistrates’ Court – March 2025

 The Court:  Melbourne Online Magistrates’ Court  

 Date:               March 2025

The Charges:  

1.        Road Safety Act 49(1)(g) – within 3 hours of driving a motor vehicle, furnish a sample of breath and the indicated concentration of alcohol after driving or being in charge of a motor vehicle (Alleged reading .131)  

2.        Road Safety Act 49(1)(b) - drive a motor vehicle while more than the prescribed concentration of alcohol (Alleged reading 0.131) 

3.        Road Safety Act 65 – driving a motor vehicle carelessly  

Possible penalties our client was facing:  

Charge 1:  

 A fine of $11,855.40 or 6 months imprisonment.  

 Charge 2:  

 A fine of $11.855.40 or 6 months imprisonment  

Charge 3:  

 A fine of $2371.08  

Loss of licence

The facts of the case:  

 At 4:30PM, our 85 year old client parked his car behind a strip of shops. He proceeded to drive from his parking spot at a high rate of speed towards a brick wall.  

Our client hit the side of another vehicle and the brick wall. The collision had such force that the other vehicle was pushed into the brick wall. Our client then reversed quickly, side-swiping a second vehicle and reversing through the brick wall of a pizza shop.  

When the police arrived, our client underwent a preliminary breath test, which indicated that alcohol was present in his breath. Our client was taken to hospital for medical reasons and had his blood tested, which indicated a reading of 0.131 grams of alcohol per 100 millilitres of blood.  

 The result:  

We recommended pleading guilty to charges 1 and 3, with charge 2 being withdrawn.  

The court imposed a fine of $1000 without conviction and a licence loss of 15 months. The client was pleased as they had told us they were not going to drive again and their aim was to get a minimal fine and no conviction. We were able to achieve both.

4.        Case study for careless driving – Online Magistrates’ Court – March 2025

 The Court: Online Magistrates’ Court

 DATE: March 2025

 The Charge:

 1.        Road Safety Act Section 65 – driving a motor vehicle carelessly

Possible penalties our client was facing:

 Charge 1

 A fine of up to $2,371.08 and a licence cancellation at the Magistrate’s discretion.

 Facts of the case:

 Our client is a probationary driver, he was heading north on the Eastern Freeway. Our client fell asleep whilst driving and crashed into the right-side metal barrier, as well as the concrete barrier. This caused substantial damage to the vehicle and barriers.

 Result in court:

 Our client was given a good behaviour bond for 6 months by the Magistrate. This means if they do not commit any offences in the 6 months, the charge is dismissed.

This was served without conviction and the client’s licence was not interfered with.

5.        Case study for multiple charges (10) including careless driving-Werribee Magistrates’ Court – March 2025

The Court: Werribee Magistrates Court

The date : March 2025 

The Charges:

1.        Road Safety Road Rules, Rule 304J(1) – using a mobile phone whilst driving a motor vehicle

2.        Road Safety Act, Section 61(1)(c) – being the driver of a motor vehicle, where an accident had occurred, failed to remain at the scene of the accident and provide their details

3.        Road Safety Act, Section 61(1)(a) – being the driver of a motor vehicle, where an accident had occurred in which property was damaged, failed to immediately stop their motor vehicle

4.        Road Safety Act, Section 64A(1) – driver of a motor vehicle who knew they had been given direction to stop by police, did not stop the motor vehicle as soon as practicable

5.        Road Safety Road Rules, Regulation 215(1) – drive a motor vehicle at night without headlights, taillights and number plate lights operating

6.        Road Safety Act, Section 64(1) – drive in a manner that was dangerous to the public

7.        Road Safety Act, Section 65 – drive a motor vehicle carelessly

8.        Road Safety Vehicles Regulations, Regulation 295(1) – use a vehicle that was not in a safe or roadworthy condition

9.        Road Safety Act, Section 49(1)(b) – drive a motor vehicle while more than the prescribed concentration of alcohol (Alleged reading 0.096)

10.  Road Safety Act, Section 49(1)(b) – Within 3 hours after driving a motor vehicle, furnish a sample of breath and the indicated concentration of alcohol after driving or being in charge of a motor vehicle (Alleged Reading 0.096)

Facts of the Case:

 Our  client held a Victorian Probationary (P1) driver’s licence. Our client was driving from her friend’s house to the shops in the evening, with two passengers. Our client was using her mobile phone and failed stop, crashing into the car in front of her.

 The victim got out of his car and approached our client to exchange details, but our client refused to provide details. One of the passengers exited our client’s vehicle and punched the victim three or four times then pushed him.

 Our client’s car then drove away, driving over the accused’s foot. The car had no headlights on. The police arrived just as the car drove away and there was a police chase. They outran the police, but not before the police got our client’s numberplate details. 

 The police arrived at our client’s house after confirming her identity via VicRoads. Our client initially denied driving, stating her vehicle had been stolen earlier. Later in questioning, she admitted to being the driver of the vehicle. Our client underwent an evidentiary breath test, where it revealed a blood alcohol concentration (BAC) of 0.096 grams of alcohol per 210 litres of breath.

 Negotiations with police before court:

 When speaking with our client, we noticed inconsistences with the story and facts of the case. When questioned about the man who punched the driver, our client revealed that he was currently on parole and that our client was covering for him.

 We asked the police to investigate further and get another statement from the victim about who was driving after the assault. The victim of the collision confirmed that after the accident, the unknown male drove away in the car, not our client.

 Our barrister approached the police with these facts when they case conferenced the matter. It was agreed that the matter would proceed by way of a guilty plea to four charges and the other six charges would be withdrawn.

 Result in court:

On the drink drive, the court imposed the mandatory minimum licence disqualification of 6 months. The disqualification was backdated to the date of the immediate suspension that had been issued to the client. That meant our client had already served this disqualification period.

The court also imposed an aggregate fine of $1500 without conviction. Our client was overjoyed with the outcome. She was able to get her licence back immediately.

 Relevant legislation for careless driving in Victoria 

 ROAD SAFETY ACT 1986 - SECT 65

 Careless driving

    (1)     A person who drives a motor vehicle on a highway carelessly is guilty of an offence and liable for a first offence to a penalty of not more than 12 penalty units and for a subsequent offence to a penalty of not more than 25 penalty units. 

    (2)     A person must not drive a vehicle, other than a motor vehicle, on a highway carelessly. 

Penalty:     For a first offence, 6 penalty units; 

"vehicle" does not include— 

        (a)     a non-motorised wheel-chair; or 

        (b)     a motorised wheel-chair that is not capable of a speed of more than 10 kilometres per hour.