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Report Details


Committee Name:

Legislation Committee (2001 - 2005)

House:

Legislative Council
Report Type:Report

Title:

Road Traffic Amendment (Dangerous Driving) Bill 2004
Report No:23
No of Pages:102
Physical Location:Legislative Council Committee Office

Presentation Date:

10/27/2004
Inquiry Name(s):Road Traffic Amendment (Dangerous Driving) Bill 2004


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Hide details for Executive SummaryExecutive Summary

1 The Legislative Council referred the Road Traffic Amendment (Dangerous Driving) Bill 2004 to the Standing Committee on Legislation on September 21 2004. On September 24 2004, the Legislative Council ordered that the Committee report on, or before, October 27 2004.

2 The stated purpose of the Road Traffic Amendment (Dangerous Driving) Bill 2004 is to amend the Road Traffic Act 1974 to simplify the requirements for proof of causation for the offences of:
  • dangerous driving causing death or grievous bodily harm (section 59 of the Road Traffic Act 1974); and

  • dangerous driving causing bodily harm (section 59A of the Road Traffic Act 1974).

3 The Committee was advised that the Road Traffic Amendment (Dangerous Driving) Bill 2004 is required because the current offences are deficient due to the difficulty in establishing causation between the dangerous manner of a person’s driving and the resulting death, grievous bodily harm or bodily harm.

4 This Report sets out the proposed amendments in the Road Traffic Amendment (Dangerous Driving) Bill 2004 to sections 59 and 59A of the Road Traffic Act 1974 and outlines other key amendments contained in the Bill.

5 The Committee considers that the first unusual aspect of this Bill is that it removes the concept that criminal punishment is imposed because of a link between something that the accused has done and the harm that results. Instead, the criminal liability arises because a vehicle in the accused’s control is involved in an incident that occasions death, grievous bodily harm or bodily harm and the accused at the time was incapable of controlling the vehicle or was driving dangerously. The element of fault or culpability, which is usually central to a criminal offence, is removed once it has been shown that the death, grievous bodily harm or bodily harm occurred while the accused was engaged in committing certain specified offences.

6 In the view of the Committee, the second unusual aspect is that the concept of fault and causation is brought back in only once the offence has been proven, because the accused is then given the opportunity to prove, on the balance of probabilities, that the death, grievous bodily harm or bodily harm was "not in any way attributable to" their criminal conduct. It is not strictly speaking a reversal of the onus of proof because the defence requires the proof of something that is not an element of the offence.

7 To assist the Legislative Council to consider the Road Traffic Amendment (Dangerous Driving) Bill 2004, Appendix 3 contains the relevant provisions of the Road Traffic Act 1974 with the proposed amendments marked.

8 The majority of the Committee does not support a recommendation that the Road Traffic Amendment (Dangerous Driving) Bill 2004 do pass without amendment on the basis that the intent of this Report, in the view of the majority, is to better inform the Legislative Council in relation to any decision that it makes regarding the Road Traffic Amendment (Dangerous Driving) Bill 2004.

9 Whilst accepting that the role of this Report is to better inform the Legislative Council, Hon Ken Travers MLC and Hon Kate Doust MLC dissented from the decision not to recommend the passage of the Road Traffic Amendment (Dangerous Driving) Bill 2004 without amendment on the basis that:
  • There are many precedents where the measures used in the Road Traffic Amendment (Dangerous Driving) Bill 2004 are contained in existing legislation and the seriousness of these offences warrants their inclusion on this occasion. Further, the Bill has sufficient safeguards to address the concerns raised in submissions.

  • Although the Road Traffic Amendment (Dangerous Driving) Bill 2004 simplifies the elements of causation, the prosecution is still required to prove that there was an incident occasioning death, grievous bodily harm or bodily harm and the driver was driving dangerously, either while under the influence of alcohol or drugs (or both) to such an extent as to be incapable of having proper control of the vehicle.

  • The recognition, by use of a 'deeming provision', that a person with a blood alcohol content of 0.15% or greater is incapable of having control of the vehicle is reasonable and reflects a similar existing provision in section 63(5) of the Road Traffic Act 1974.

  • The Road Traffic Amendment (Dangerous Driving) Bill 2004 will address deficiencies in the existing law to ensure that people who put lives at risk by driving when drunk or under the influence of drugs are made to bear the full responsibility for the consequences of their actions and will be a powerful deterrent against driving under the influence.

Recommendation

10 The Recommendation appears in the text at the page number indicated:

Page 49

Recommendation 1: The Committee recommends that the House be fully cognisant of the impact of the Road Traffic Amendment (Dangerous Driving) Bill 2004 on the dangerous driving offences in the Road Traffic Act 1974 which result in harm to persons, in particular:

  • the effect of the removal of the requirement of a causal link between the driving by the "person" and the death, grievous bodily harm or bodily harm. Instead, the prosecution will be required to prove that the "incident" in which the driver was involved occasioned the death, grievous bodily harm or bodily harm thereby simplifying the proof of the offence;

  • the effect of proposed section 59B(5) which is a 'deeming provision'; and

  • proposed section 59B(6) which places a burden on the accused to prove any causal break between the "incident" and the death, grievous bodily harm or bodily harm.