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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-09-28 Daily Xml
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STATUTES AMENDMENT (DRIVING OFFENCES) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 21 July 2010.)

The Hon. D.G.E. HOOD (16:14): I rise to indicate that, in short, Family First supports this initiative and will support any initiative by this or any future government aimed at lowering our road toll. The bill introduces street racing as a serious criminal offence for the first time and, as I understand it, would cause this offence to be heard, on many occasions, in the District Court rather than the Magistrates Court, which should see an increase in penalties for this type of offending.

The definition of street racing will include all participants of the street race, including, obviously, the driver, but also people who assist in the promotion of the street race or those who engage in any other conduct that assists in a street race taking place. Perhaps more controversially, the bill, as it stands unamended, also includes passengers in the vehicle.

However, as the minister has noted, it shall be a defence of the charge of participating in a street race by being present in the vehicle if the person proves that they were not the driver and did not consent to the motor vehicle being driven in the race. It is perhaps an appropriate time to indicate that I am aware of the amendments of the Hon. Ms Bressington, which Family First is favourable to, but of course would like to hear the debate.

There are also factors listed that will deem the offence as aggravated, including driving the motor vehicle in circumstances of heightened risk, for example, if the road or weather conditions are poor or if the offender committed the offence knowing that there were one or more passengers in or on the vehicle (I think 'on the vehicle' is a very wise inclusion in the bill, because that can happen on occasions) or if the offender was at the time of the offence driving a motor vehicle that had a major defect about which the offender knew or ought reasonably to have known.

Obviously, driving a vehicle with a defect heightens risk and would not only include the sort of old bombs with worn tyres but also, I presume, vehicles so over-modified for performance that they have actually become dangerous. The basic first offence carries a three-year maximum period of imprisonment with a licence disqualification of one year. Aggravated offences carry a maximum of five years' imprisonment with three years' disqualification.

The first question I raise concerns the issue of a case involving two street racing offenders, Scott Fenney and Corey Sully, who were dealt with in a hearing by magistrate Simon Smart on 16 September last year. Both were charged with causing death by dangerous driving, causing harm by dangerous driving and two counts of causing injury by dangerous driving. Sully was also charged with leaving the scene. They killed an innocent motorist, 22 year-old Tom Brooks, earlier in the year while they were street racing in two Subaru WRXs at speeds of up to 130 km/h along Torrens Road, which I understand is a 60 km/h zone.

Now, I understand that if they were charged with drink driving then they would have lost their licence automatically in those circumstances. Given that the offending at the time did not give rise to an automatic disqualification under the law, the police officers indeed arrested the two and placed them on bail not to drive. A lawyer successfully argued, however, that they were innocent until proven guilty and the magistrate must give them both back their licences despite the fact, I should point out, that they had killed an innocent motorist only a couple of months earlier.

I ask the minister on notice whether that particular loophole has been closed by the bill, because I would think that most members of the public would expect that, in those circumstances that I have just outlined, there would, in fact, be an automatic loss of licence, as occurs under many other driving offences; indeed, much less serious offences. In short, will a person charged with street racing face an automatic loss of licence? I think we all agree that a strong message needs to be sent to people involved in street racing. An immediate loss of licence would send a clear message to some youths (whether they be youths or not, of course) involved in such activities.

Last year, South Australia lost Tom Brooks. There was also the case of Ricardo Rocha, another 22 year-old charged with causing death by dangerous driving over another high-speed street race which killed Minh Bui of Woodville Park and seriously injured two other innocent people. There are many stories involving deaths due to street racing that we read of every few months in the paper, indeed, every few weeks, it seems in recent times. I agree that, as a state, we need to be tougher on street racing, and that is why Family First intends to support the passage of this legislation. I also submit that we need to enforce immediate licence disqualifications to get these people off the road immediately

We also need to give so-called 'revheads' a place to blow off steam, a place where they can legally race away from innocent motorists so that no harm will be done to bystanders. I note that, in fact, my colleague, the Hon. Mr. Brokenshire, has a track at his farm that he lets people use from time to time which I am sure would be a great deal of fun. I think it is a good way for people to experience the thrills that can be provided through high-powered cars without putting anyone at risk.

I should place on the record that Family First supports the development of a motorway or speed track (or whatever the right term is) so that this sort of activity can occur legally and safely. Indeed, as a so-called 'revhead' myself—I have often been called that on a number of occasions—I think there is a great deal of fun that can be had legally and safely if we are prepared to invest in this. This bill is the right way forward, together with tough laws against illegal street racing. We are generally supportive of this legislation and are inclined to look favourably on the amendments proposed by the Hon. Ms Bressington.

The Hon. A. BRESSINGTON (16:19): I rise to speak briefly to the Statutes Amendment (Driving Offences) Bill 2010 and in doing so indicate that I will be supporting the bill on condition of the amendment. The bill seeks in part to create a new offence of participating in a street race and quite elaborately sets out the conditions under which a street race will have taken place at law, the defences for emergency personnel, the aggravating circumstances and the defences available.

While arguably few in number, the horrendous carnage and wanton waste of life that results from high-speed crashes following a street race is traumatic, not just to the victims, their families and friends and emergency personnel, but also to the broader community when we wake to images, either on the television or in the paper, of a car severed by a stobie pole or reduced to a fifth of its size after a head-on collision. Regardless of whether serious injury occurs, the reckless disregard for the safety of other road users and pedestrians by those engaging in street races should be a serious offence, deserving of significant penalties, and under this bill will be.

While many have pointed out that there are existing laws that cover much of what is targeted by the bill, I am of the opinion that the new offences, and specifically the elements required for these new offences, and the aggravating circumstances, are an advancement of current law. I do, however, hold concerns about the reversal of onus of proof from the prosecution to the defendant for establishing the participation of a passenger in a street race.

Essentially, the bill proposes to presume that a passenger in a motor vehicle that is in the street race abetted the driver to commit the offence, that is, the passenger egged the driver on. While this may indeed be the case in some or even most instances, I take the position that this is not a sufficient justification for reversing the onus of proof and requiring the defendant to demonstrate that they did not consent to the street race. As the Minister for Road Safety rightly pointed out in the other place, it will indeed be difficult to provide evidence of the behaviour of a passenger in a vehicle that is involved in a street race. This is true whether one is seeking to prove the passenger's participation in that race or whether, as this bill would have it, a passenger is trying to prove they did not consent to the race.

I assume the courts will not simply accept that a passenger did not consent from their testimony alone. To do so would be to render this provision futile, as no properly advised defendant in such circumstances will willingly concede their guilt. Even applying the balance of probabilities test, an innocent defendant will presumably have to offer the court corroborating testimony of the driver or other passengers to escape conviction. While such testimony may be forthcoming, whether the passenger is truly innocent or not, the current presumption can, and likely will, result in an innocent person being convicted.

The presumption of innocence is argued as sacrosanct to the law, and largely I agree. There is much to be admired in Benjamin Franklin's often-used quote that 'it is better a hundred guilty persons should escape than one innocent person should suffer.' This principle was dated back to the origins of law itself by another American identity, former president of the United States, John Adams, when he said, 'There never was a system of laws in the world in which this rule did not prevail', and can be found in the Bible, in the book of Genesis, in an exchange between God and Abraham.

As for the argument that was put by the government's representatives in the briefing provided that it is not always possible to ascertain who the driver of the vehicle is, I would again argue that this is not sufficient reason to reverse the onus of proof. Instead, the more appropriate approach, which is the existing approach of the law, is to charge under section 74AB of the Summary Offences Act 1953 a passenger who refuses when asked to inform a police officer of who was driving the vehicle. This offence currently carries a more than sufficient penalty of $1,250 or imprisonment of three months.

I would also like to make the point that charging the passenger under such circumstances would inadvertently act as a disincentive towards a passenger cooperating with the police. A passenger who is reliant upon the favourable testimony of the driver to demonstrate that they did not consent to the street race is hardly going to put in their name. To address this concern I will be moving an amendment to restrict section 19AD(2)(a) to the driver of the motor vehicle and consequently to delete section 19AD(4). In doing so, I stress that a passenger who abetted a driver to commit a street race, where there is sufficient evidence to make out the elements of the defence, can be charged as a principal offender under section 267 of the Criminal Law Consolidation Act 1935 and be liable for the maximum penalty as a driver of the vehicle.

This amendment was endorsed by the South Australian Law Society in a letter to my office which has been circulated electronically to members in this place. The President of the Australian Lawyers Association, Mr Anthony Kerin, has also endorsed my amendment in a lengthy and considered submission, which closes with the following:

I reiterate my comments that it is inappropriate for a defendant to have to prove anything. If there is a question about intent, that should be a matter for the police to prove. All of this does lead to sloppy prosecution. This drafting is as a result of a trend in recent years for incursions into the rights of members of the community. Expediency and making it easier to prosecute people by eroding the presumptions of innocence and to burdens of proof are a worrying development in drafting generally.

As I said at the outset, I support the bill and its intention, but I do so on the condition that the dangerous reversal of onus of proof is removed from the bill.

Debate adjourned on motion of Hon. B.V. Finnigan.

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