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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-06-05 Daily Xml
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STATUTES AMENDMENT (DANGEROUS DRIVING) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 15 May 2013.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (17:43): I rise to speak on the Statutes Amendment (Dangerous Driving) Bill 2013. I indicate that the opposition will not be opposing this bill but we will reserve the right to consider amendments in another place. The bill may well be a very short one but it has some important consequences. This is a bill that was introduced only a couple of weeks ago by the Attorney-General on 15 May.

Essentially the bill proposes to amend the Criminal Law Consolidation Act 1935, in particular section 19A—Causing death or harm by use of vehicle or vessel and section 19AC—Dangerous driving to escape police pursuit, etc. It also amends the Road Traffic Act 1961, in particular section 46—Reckless and dangerous driving.

In each instance the prosecution is currently required to prove that the accused drove in a manner dangerous to the public. The government has argued that the courts have interpreted the phrase too narrowly and as such 'the public' is not read to encompass a wide range of persons. The bill seeks to amend the respective sections to widen the definition to include 'any person'.

The Attorney-General has cited the 2008 case of R v Palmer to justify the bill. In that case, the accused was charged with causing death by dangerous driving. The accused performed dangerous manoeuvres on a private property. The vehicle fell onto its side and crushed a passenger's skull. The judge directed the jury to return not guilty verdicts for the following reasons:

the relationship (indeed friendship) between the three passengers and the driver negated the view that the passengers were to be regarded as members of the public;

the activities in question took place on private property and away from any road;

the accused and his three passengers were all knowingly engaged in a form of skylarking;

the four persons willingly got into the vehicle in question together for the purposes of amusing themselves by a particular, and somewhat dangerous, form of recreational activity directly connected with the driving of the vehicle, namely in tight circles with the steering wheel in full lock and the accelerator applied;

the activity constituted a danger to all four of them, but to nobody else;

in circumstances where it is proper to regard the activity as a part of a joint escapade on the part of the accused and the passengers, they being the only persons endangered by the activity, then it was not proper to characterise the passengers as 'the public'.

The judge in that case commented that his conclusion may have been different had section 19A read 'driving in a manner dangerous to any other person' rather than 'a manner dangerous to the public'.

The judge applied the reasoning of the New South Wales Court of Appeal in R v S (1991) NSWLR 548, which had a similar factual scenario. After the Court of Appeal handed down the decision in R v S, the New South Wales parliament amended their legislation in similar terms to the current bill. In the case of R v Breuker (2011) SADC 64, in the South Australian District Court, the charge was laid when an individual died after either falling or jumping off the back of the accused's vehicle whilst it was moving, landing awkwardly and fracturing their skull.

The event occurred on a fenced off netball court where people were setting up for a ticketed event. Members of the public had not yet started to arrive. The judge considered the case of R v Palmer and applied the reasoning of the New South Wales Court of Appeal in R v S. They noted Chief Justice Gleeson's comments in R v S that there can be forms of relationships between the accused and the deceased which negate the conclusion that the passenger is to be regarded as a member of the public. In that case, the accused, the passenger and the victim were considered to be engaged in skylarking: engaging in a risky activity, a joint escapade, and as such it was improper to characterise the passengers as 'the public'.

In R vs Breuker, the judge highlighted that other relationships, on the facts of the case, could negate the deceased from being considered a member of the public. The judge considered the fact that the deceased got onto the back of the car meant that he was no longer a member of the public, stating:

I see no reason in principle why the accused should be in a worse position if the deceased voluntarily and without his agreement puts himself in an inherently dangerous position than if they jointly agreed to that course of action. It is not the presence or otherwise of an agreement between the accused and the deceased which characterises the deceased as a member of the public, it is the characterisation of the relationship that determines this issue.

The trial judge again highlighted that their conclusion may had been different, of course, had section 9A been differently worded.

Section 25 of the South Australian Motor Sport Act 1984 provides for the 'non-application of certain laws' to areas declared by the responsible minister to be areas for a motor sport event under the motor sport act. Section 25(1a) provides that respective sections of the Criminal Law Consolidation Act and the Road Traffic Act, which are to be amended by the bill, do not apply in relation to:

...a vehicle or its driver while the vehicle is being driven in a motor sport event within the declared area and during the declared period for the event.

Members are no doubt aware, and I was not until I had been provided with this information by our shadow attorney, that the Clipsal 500, and its predecessor, the Sensational Adelaide 500, is a motorsport event which attracts a declaration under the motor sport act. Since 1999, no other motor sport events, except the 1999 Le Mans, have had the privilege of being conducted within a declared area and, as such, the provisions of the Road Traffic Act and the Criminal Law Consolidation Act have applied.

The Sporting Car Club of South Australia owns and operates the Collingrove Hill Climb (which I presume to be some sort of road) in the Barossa Valley and holds races at the Mallala Motor Sport Park. These are both private venues.

This bill does not bring the relevant law onto private property. The three identified offences can already be applied to dangerous driving on private property. The case seeks to avoid the relationship of the parties to affect the application of the charge. The cases indicate that it is the relationship between the accused and their actions and the deceased, which is usually why the courts have interpreted the provision narrowly.

The bill will widen the scope of the offences so that it would likely apply where an accident occurs on a private motorway, such as the Collingrove Hill Climb, even where the deceased consents to the activity. Whilst any accident, of course, is tragic, drivers and others who engage in motor sport activity consent to do so, and one should not be held criminally liable for an adverse outcome where a risk is willingly taken on.

I am not certain how there would be any application or liability towards someone who was driving a motor vehicle in these circumstances were they to cause injury to a spectator, for example, who might run onto the track. I make that observation because I am in no way familiar with the operations of motor car racing and do not pretend to understand all the detail.

I am only assuming here that these other motor sport activities quite likely do not have the same level of barriers and safety equipment to protect spectators from the potential risks of a motor vehicle that might lose control or roll over or hit something that it should not, or run into another vehicle or whatever dangerous things they do. Whereas major events, such as Clipsal 500, we all see each year being enveloped with all sorts of safety paraphernalia, I am sure not only to protect the public but also for the protection of the drivers and other officials who are working on the tracks.

This bill does significantly reduce the individual's personal freedoms, and there is this question of the potential criminal liability, which may not have been intended or may not be justified. We would want to have a look a little more closely at some of this legislation before we can support it. We will be keen to do that, and we will have the opportunity to do that during the break that we will inevitably have in consideration of this bill.

I conclude by saying that the Liberal opposition is and remains committed to road safety and to holding to account those who flout the law and who have disregard for the safety of others. We think they should be brought to account. We will examine how that can be achieved with what appears to be, on the face of this, the good intentions of the government with this bill. We will give the bill support and consideration, but we will need to identify if there are amendments to be introduced to make that application fair and balanced. I seek leave to continue my remarks.

Leave granted; debate adjourned.

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