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Mistake of Law and Bad Advice


Due to the complexity of the driver fatigue laws, most truck drivers will at some stage seek advice from the authorities on how to comply with them.

Unfortunately, the advice that drivers receive isn’t always correct. I have met many drivers who have been prosecuted for mistakes in their work diaries that they made by following incorrect advice from police or road authority officers.

You would expect that the bad advice would provide these drivers with a defence to their charges. Surely, seeking and following the advice of the officials empowered to enforce these laws must render their conduct innocent.

However, in most States and Territories this is not the case. The driver will still be guilty of the offence even though it was caused by bad advice from a government official.

In most jurisdictions there is a principle that “ignorance of the law is no defence.” This means that usually the prosecution doesn’t have to prove the person was aware that they were breaking the law. Being unaware that conduct is illegal is not usually a defence.

As unfair as it is, this concept usually still applies even where the person’s mistaken understanding of the law was induced by government officials. So, for example a truck driver who is taught the wrong way to count their work and rest hours by a police officer will usually still be guilty of a driver fatigue offence if they follow that incorrect advice.

Although it may not constitute a defence, incorrect advice from an official can be taken into account in a few different ways during Court proceedings.

Firstly, if the prosecution accepts that your conduct was induced by incorrect advice it may agree to discontinue the case against you. However, in practice getting the authorities to withdraw charges is not as straightforward as it seems. It can be difficult to convince the prosecutors to believe that you received incorrect advice.

The second way that incorrect advice can be taken into account is during the sentencing process. If the Magistrate accepts that the defendant was given incorrect information they can reduce or waive the penalty that would usually apply.

In my opinion, it is still an unsatisfactory position that the best a person who has been misled by the authorities can do is hope that the prosecutor will cooperate or that they will receive a lesser penalty.

The key lesson for truck drivers is to remember that even government officials make mistakes. It is prudent to double check their advice and keep evidence of what you have been told. Some helpful steps include:

  • Call the NHVR or a lawyer to double check any information that you receive from the police or road authority inspectors.
  • Always keep notes of what you have been told. Include who told you, the date and where you had the conversation.
  • If you are charged with an offence speak with a lawyer before your Court date. They can help you decide whether you have a defence to the charge, whether it is worthwhile speaking with the prosecutors about withdrawing the case and what evidence you will need to prove that you received poor advice.

Image Credit – goodluz © 123RF.com

Written by Sarah Marinovic on January 11, 2018

Sarah has a strong drive to use her legal knowledge to help people in times of difficulty. Her goal is to not only achieve the best legal result, but to also ensure that her clients understand each step, and what is required from them to achieve the best results. With her friendly manner she strives to ensure that he client's mind is at ease throughout the process. View Sarah's profile


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