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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-11-27 Daily Xml
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STATUTES AMENDMENT (DANGEROUS DRIVING) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 12 September 2013.)

The Hon. S.G. WADE (12:30): I rise on behalf of the opposition to speak on the Statutes Amendment (Dangerous Driving) Bill 2013. The Attorney-General, John Rau, introduced the Statutes Amendment (Dangerous Driving) Bill in the house on 15 May 2013. The bill seeks to amend sections 19A and 19AC of the Criminal Law Consolidation Act, those sections dealing with 'causing death or harm by use of a vehicle or vessel' and 'dangerous driving to escape police pursuit' respectively. The bill also amends section 46 of the Road Traffic Act 1961, which relates to reckless and dangerous driving.

In each instance, the prosecution is currently required to prove that the accused was driving in a manner dangerous to 'the public'. The government argues that judicial interpretation of this phrase has led to a very limited interpretation of who constitutes 'the public' and that, in some instances, a death caused by dangerous driving on private property will not fall within the circumstances contemplated by section 19A and section 19AC of the Criminal Law Consolidation Act 1935. The bill seeks to widen the definition to include not just 'any person' but rather 'the public'.

The Attorney cites the 2008 case of R v Palmer to support the bill. In this case, the accused was charged with causing death by dangerous driving, under section 19A of the Criminal Law Consolidation Act. The accused performed dangerous manoeuvres on private property, the vehicle fell onto its side and crushed the skull of one of the passengers. The judge directed the jury to return not guilty verdicts for various reasons. He cited the relationship between the victim and the offender as negativing the view that the passengers were 'members of the public'. He noted that the activities in question took place on private property and also that the accused and all of his passengers knowingly chose to engage in a risky activity that did not constitute a danger to anybody other than themselves.

The judge 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, which had a similar factual scenario. After the Court of Appeal handed down the decision in R v S, the New South Wales parliament passed the Crimes (Dangerous Driving Offences) Amendment Bill 1994, which replaced the words 'the public' with 'another person' in the relevant section of the Crimes Act.

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 law indicates that it is the relationship between the accused and their actions and the deceased which is usually the basis on which the courts have interpreted the provision narrowly. The bill simply proposes to widen the class of persons from 'the public' to 'any person'. It appears that this would widen the offence to capture instances where people decide to engage in dangerous activity on roads, overcoming the 'relationship characterisation', as identified by the courts.

This bill will widen the scope of the offence so that it would likely apply in a situation when an accident occurs on a private motorway, such as the Collingrove Hill Climb, and even where the deceased consents to involvement in a dangerous activity. While any accident is tragic, drivers and others who engage in motorsports activity actively consent to do so, and the opposition believes that we should be cautious in ascribing criminal liability for an adverse outcome where a risk is willingly taken on.

Section 25 of the South Australian Motor Sport Act provides for the 'non-application of certain laws' to areas declared by the responsible minister to be areas for a motorsport event under the Motor Sport Act. Section 25(1a) provides that the respective sections of the Criminal Law Consolidation Act and the Road Traffic Act, which are to be amended by this 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'. The Clipsal 500 is a motorsport event that attracts a declaration under the South Australian Motor Sport Act. My understanding is that there are no others.

In our view, the legislation passed by this parliament, the South Australian Motor Sport Act, is a tangible expression, if you like, in legislative form of the principle that people who engage in dangerous activity are, to a certain extent, knowingly taking on a risk.

The opposition is concerned that the bill may have ramifications for motorsport in South Australia. Certainly the Sporting Car Club is of the view that the bill could place criminal liability on people who are involved in motorsport events, even those which are held on private property.

The House of Assembly debated a range of issues with the bill. The debate clarified, for example, that the bill will cover boating accidents and other instances where a vehicle or vessel is involved in a fatal accident. In particular, the Attorney-General made it clear that the offences would apply to farming accidents where the driver drove in a dangerous manner.

The issues the bill seeks to address are significant and would result in the prospect of prosecution of drivers who would not currently be prosecuted. The opposition continues to have concerns with the changes to the law. We will not be opposing the bill, but we will monitor its impact so as to ensure that it does not have unintended consequences.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (12:36): In rising to close the debate on the Statutes Amendment (Dangerous Driving) Bill 2013, I would like to address a couple of issues that were raised in the debate in the other place and put the government's response on the record.

In recent years there have been a number of court cases in relation to fatal motor vehicle accidents where the driver has been the subject of a charge relating to cause death through dangerous driving. The failure to convict in those cases hinged on the interpretation of the court as to who constitutes a member of the public.

The purpose of the bill today is to clarify the divergent approaches by the court in interpreting the term 'public' by replacing the reference to 'the public' with a reference to 'any person' in sections 19A and 19AC of the Criminal Law Consolidation Act 1935 and section 46 of the Road Traffic Act 1961. This amendment closes a loophole in our justice system that has prevented certain drivers from facing criminal sanctions for engaging in reckless or dangerous driving resulting in death or serious injury of another person.

As I said, three issues were raised about this bill in the other place. The first was a concern that this bill would restrict individual freedom on private property, such as the right to operate a farming vehicle or enjoy recreational pursuits. The second issue related to how the proposed legislation would affect sporting car events, and the final issue was in relation to the impact of the bill on the operation of vessels on a waterway.

In relation to the first concern, that this bill would restrict individual freedoms on private property, it should be noted that section 19A of the Criminal Law Consolidation Act 1935, which deals with causing death or harm by use of a vehicle or vessel, has always applied to private property. This legislation is not about limiting an individual's recreational or pastime activities or hindering farmers in their business.

For a defendant to be guilty of the offence of causing death by dangerous driving under section 19A of the Criminal Law Consolidation Act 1935, the prosecution must establish beyond a reasonable doubt the following elements that constitute the offence: first, that the accused was the driver of the motor vehicle; secondly, that the motor vehicle was being driven in a manner which was dangerous to the public; thirdly, that by driving in that manner the accused caused the death of the deceased; and fourthly, that the accused did all that as part of a prolonged, persistent and deliberate course of bad driving.

The only effect of changing the word 'public' to 'any other person' is to alter the second element so that the prosecution will now need to prove that the motor vehicle was being driven in a manner which was dangerous to any other person, as opposed to a member of the public. The other elements of the offence remain unchanged.

In relation to the second issue, the amendment is not intended to limit motorsport enthusiasts. Section 25 of the South Australian Motor Sport Act 1984 ensures that declared motorsport events are exempt so long as the manner of driving is within the acceptable rules of that declared motorsport race.

The third issue raised in the other place was whether this legislation would apply to vessels on a waterway and how that would implicate boat racing and water sports. I can confirm that the operation of a vessel is already captured by the existing legislation, on my advice, and the amended legislation will continue to apply to the conduct of operating a vessel on a waterway, such as boats on a river. Again, this bill does not intend to impinge on recreational activities on a river or waterway. The elements of the offence as described earlier with regard to the driving of a motor vehicle will also continue to apply to vessels on a waterway.

In conclusion, the law as it currently stands is inappropriate and leaves a significant aspect of dangerous conduct deserving of criminality outside of the law. It is undesirable that such an important area of the criminal law is in such an uncertain state. Safety to the community is of paramount concern to this government and closing this loophole will provide greater certainty for the courts when interpreting the legislation and thereby achieve the objective in improving and enhancing safety.

I understand that the opposition is not yet ready to conclude the committee stage today so, if this bill has its second reading, I will be seeking the council's permission to hold the committee stage for consideration tomorrow.

Bill read a second time.

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