Crimes Amendment (Road Accidents) (Brendan’s Law) Bill 2005
Reverend the Hon. Dr GORDON MOYES: This bill amends the Crimes Act 1900 and road transport legislation with respect to the obligations of drivers to stop and provide assistance where their vehicles are involved in accidents resulting in death or injury. The Christian Democratic Party supports the bill. However, the Legislation Review Committee has identified concerns about the bill that need to be addressed before the House passes it in its current form. In our day-to-day living we all must have, at some point, heard or read about a story of a person struck down by a vehicle who was subsequently left abandoned and unassisted by the driver of the vehicle involved. Reports of hit-and-run accidents commonly make an appearance in the newspapers. The second reading speech to this bill refers to the case of Brendan Saul, a nine-year-old boy who died after being struck at Dubbo in January 2004 by a car driven by a juvenile driver. His story was similar to that of Bryce Rolls, an 11-year-old who died after being struck down by a car in May 2003.
Every death leaves a trail of inexplicable and indelible grief for affected families and communities alike. It is trite to say that fundamental norms of human decency are violated when a driver leaves the scene of an accident without rendering assistance to the victim of the accident. The plight of such victims is in some ways similar to that of the “certain man” referred to by Jesus in Luke 10. He was wounded and abandoned by thieves on the way to Jerusalem, left for dead and then assisted by the Good Samaritan. Hit-and-run drivers should observe and learn from the story of the Good Samaritan. There is a chance that in some hit-and-run cases the injury suffered by the victim could have been mitigated if medical assistance had been rendered to the victim at the time of the collision. The bill is important because it makes drivers responsible for ensuring that victims of accidents are given medical assistance.
The bill is also curious because it legislates in relation to an omission and not an act. Generally, the law prohibits citizens from acting rather than providing for it to be an offence if citizens do not act in a certain way. However, there are examples of situations where the law has covered omissions, especially where a duty of care is involved. The bill inserts a new section in the Crimes Act 1900, section 52AB, which creates two new offences. The new section makes it an offence for the driver of a vehicle that is involved in a collision causing death or grievous bodily harm to fail to stop and give assistance in circumstances in which he or she knows, or ought reasonably to know, that the vehicle has been involved in such a collision. In cases in which the collision causes death, the maximum penalty for failure to stop is imprisonment for 10 years. Where the collision causes grievous bodily harm the maximum penalty for failure to stop is imprisonment for seven years.
It is of interest to note that the maximum penalties are equivalent to those for offences of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm in section 52A of the Crimes Act. While these heavy penalties may be included as a way of deterring such behaviour, it is significant to point out that section 52AB makes no distinction between a driver whose dangerous driving caused the accident and a driver who caused an accident inadvertently—when, say, a pedestrian or animal crossed his or her path. The Legislation Review Committee has written to the Attorney General to seek his advice as to why the more severe penalties in section 52AB may apply to drivers who did not drive in a dangerous manner rather than being limited to some circumstance of aggravation, such as involved with dangerous driving. Those driving dangerously and those who are deemed not to have been driving dangerously per se who flee the scene of an accident are both liable to maximum penalties of 10 or seven years imprisonment. The other issue referred to the Parliament by the committee is that section 52AB does not require that a driver be directly responsible for the impact occasioning death or grievous bodily harm in order for the maximum penalties to be attracted.
Section 52AB is based on an objective mental element criteria rather than a subjective one. Thus, a person is guilty of an offence if the person “ought reasonably to know” that the vehicle has been involved in impact occasioning the death of, or grievous bodily harm to, another person. The Hon. Dr Arthur Chesterfield-Evans referred to an incident in which he might not reasonably have known that an accident occurred while he was at the wheel of his Morris Minor. My memories of Morris Minors is that any two-year-old boy who had had his Weet-Bix for lunch could have picked up a Morris Minor by the front bumper bar. The committee has referred the question as to whether imprisonment should be available for this offence, given that it is based on an objective mens rea assessment.
One worthy point to note is that the bill does not explicitly address the liability of a driver suffering from mental or psychological incapacity who leaves the scene of an accident. This was identified by the committee, which said, “It is not clear to the Committee how the objective test would be applied to a driver who was very confused or in a state of automatism as a result of the physical or psychological impact of an accident”. The committee has sought clarification from the Attorney General on the liability of a driver whose vehicle causes injury or death and who has left the scene of an accident under some mental incapacity. The bill also replaces current section 70 of the Road Transport (Safety and Traffic Management) Act 1999 with a new version. The new provision is aimed at ensuring that immediate assistance is obtained for people injured in accidents, however serious the injury.
The maximum penalty for failing to stop and provide assistance is 18 months imprisonment for a first offence and two years for a subsequent offence under this provision. The new offence introduced by this bill mirrors the recent Victorian amendments. The Government has indicated that an education campaign aimed at informing drivers of their responsibility will be developed prior to the commencement of this legislation. With those comments in mind the Christian Democratic Party supports the bill.
