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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-09-12 Daily Xml
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STATUTES AMENDMENT (DANGEROUS DRIVING) BILL

Second Reading

Second reading.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (16:57): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Bill amends sections 19A and 19AC of the Criminal Law Consolidation Act 1935 ('CLCA') and section 46 of the Road Traffic Act 1961 ('RTA').

A key element of the section 19A and 19AC offences is proving that the accused drove in a manner 'dangerous to the public'. Judicial consideration of this phrase has led to a limited interpretation of who constitutes 'the public'.

The courts in South Australia have held that, in some circumstances, a death caused by dangerous driving on private property will not fall within the circumstances contemplated by sections 19A and 19AC. This is not good enough.

In R v Palmer [2008] SADC 122 the accused was charged with the offence of aggravated causing death by dangerous driving under section 19A of the CLCA.

The charge arose out of a motor vehicle accident that occurred on a private property. The accident occurred as a consequence of the accused performing dangerous manoeuvres in his motor vehicle. Those manoeuvres caused the vehicle the accused was driving to fall onto its side, crushing the skull of a passenger.

The trial judge in this case directed the jury to return verdicts of not guilty to the offence of aggravated causing death by dangerous driving and the alternative non-aggravated offence because:

The relationship (of friendship) between the three passengers and 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 willingly got into the vehicle in question together for the purpose of amusing themselves by a particular, and somewhat dangerous, form of recreational activity directly connected with the driving of the vehicle (in tight circles with the steering wheel on 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 trial judge further stated that his conclusion might well have been different if the relevant words of section 19A of the CLCA had read driving in 'a manner dangerous to any other person' rather than 'a manner dangerous to the public'.

In reaching the decision, the trial judge applied the decision of the NSW Court of Appeal in R v S (1991) 22 NSWLR 548. The facts of R v S were similar to Palmer, in that the death of a passenger was caused by dangerous driving on private property. As a result of R v S, the NSW Parliament passed the Crimes (Dangerous Driving Offences) Amendment Act 1994 to replace the words 'the public' with 'another person' in the relevant section of the Crimes Act.

This Bill will make an identical amendment to the relevant sections in the CLCA, namely sections 19A and 19AC. The words 'the public' will be replaced with the words 'any person'. A similar amendment will be made to section 46 of the RTA because it is the alternative offence to sections 19A(1) and 19A(3) of the CLCA. It is important to note that the RTA only applies to offences committed on roads (see section 5A), so will not capture an offence committed on private land.

The limitation on the offences set out in sections 19A and 19AC ought to be removed given the very serious subject matter involved, namely dangerous driving that causes the death of another.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Amendment of section 19A—Causing death or harm by use of vehicle or vessel

This clause amends section 19A to replace the reference to the public with a reference to 'any person'.

5—Amendment of section 19AC—Dangerous driving to escape police pursuit etc

This clause amends section 19AC to replace the reference to the public with a reference to 'any person'.

Part 3—Amendment of Road Traffic Act 1961

6—Amendment of section 46—Reckless and dangerous driving

This clause amends section 46 to replace the reference to the public with a reference to 'any person'.

Debate adjourned on motion of Hon. J.S.L. Dawkins.

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