Law Article by: Geoff Harrison | Sydney Criminal Barrister | Sydney Criminal Lawyer | Published 26/04/2011
The legislation is colloquial referred to as Skye’s law after the tragic death of Skye Sassine who was killed on the 31st December 2009 in a motor vehicle accident where the driver of the other vehicle was involved in a police pursuit and attempting to evade police.
The elements of the offence involve:
1. knowledge or recklessness that police are in pursuit of the vehicle;
2. the person does not stop; and
3. the person is driving either recklessly or in a speed dangerous or in a manner dangerous to others.
It is of note that the section does require that the driving be reckless or dangerous to members of the public.
Parliament’s agreement in principle and arguments in support of the bill are set out below.
CRIMES ACT 1900 - SECT 51B
51B Police pursuits
(1) The driver of a vehicle:
(a) who knows, ought reasonably to know or has reasonable grounds to suspect that police officers are in pursuit of the vehicle and that the driver is required to stop the vehicle, and
(b) who does not stop the vehicle, and
(c) who then drives the vehicle recklessly or at a speed or in a manner dangerous to others,
is guilty of an offence.
(a) in the case of a first offence-imprisonment for 3 years, or
(b) in the case of an offence on a second or subsequent occasion-imprisonment for 5 years.
(2) In this section, "vehicle" has the same meaning as it has in section 52A.
ROAD TRANSPORT (GENERAL) ACT 2005 - SECT 188
188 Disqualification for certain major offences
(1) Definitions In this section:
"automatic disqualification" means a disqualification under this section from holding a driver licence without specific order of a court.
"convicted person" means:
(a) a person who is, in respect of the death of or bodily harm to another person caused by or arising out of the use of a motor vehicle driven by the person at the time of the occurrence out of which the death of or harm to the other person arose, convicted of:
(i) the crime of murder or manslaughter, or
(ii) an offence under section 33, 35, 53 or 54 or any other provision of the Crimes Act 1900 , or
(b) a person who is convicted of an offence under section 51A, 51B or 52AB of the Crimes Act 1900 , or
(d) a person who is convicted of aiding, abetting, counselling or procuring the commission of, or being an accessory before the fact to, any such crime or offence.
"conviction" means the conviction in respect of which a person is a convicted person.
"ordered disqualification" means disqualification under this section from holding a driver licence that is ordered by a court.
(2) Disqualification if no previous major offence If, at the time of the conviction of the convicted person or during the period of 5 years before the conviction (whether that period commenced before or commences after the commencement of this section), the convicted person is not or has not been convicted of any other major offence (whether of the same or a different kind):
(d) where the conviction is for any other offence:
(i) the person is automatically disqualified for a period of 3 years from holding a driver licence, or
(ii) if the court that convicts the person thinks fit to order a shorter period (but not shorter than 12 months) or longer period of disqualification-the person is disqualified from holding a driver licence for such period as may be specified in the order.
(3) Disqualification if previous major offence If, at the time of the conviction of the convicted person or during the period of 5 years before the conviction (whether that period commenced before or commences after the commencement of this section), the convicted person is or has been convicted of one or more other major offences (whether of the same or a different kind):
disqualified from holding a driver licence for such period as may be specified in the order, or
(d) where the conviction is for any other offence:
(i) the person is automatically disqualified for 5 years from holding a driver licence, or
(ii) if the court that convicts the person thinks fit to order a shorter period (but not shorter than 2 years) or longer period of disqualification-the person is disqualified from holding a driver licence for such period as may be specified in the order.
(4) Calculation of disqualification periods in case of multiple offences If 2 or more convictions of a person are made, whether or not at the same time, for crimes or offences arising out of a single incident involving the use of a motor vehicle or trailer, the following provisions apply:
(a) for the purpose of ascertaining which of subsections (2) and (3) should apply in relation to any such conviction:
(i) the other of those convictions are to be disregarded, and
(ii) subsection (2) or (3) (as the case may require) is, accordingly, to be the applicable subsection, and
(b) the maximum period of automatic disqualification in respect of all those crimes or offences is to be:
(i) if subsection (2) is applicable-3 years, or
(ii) if subsection (3) is applicable-5 years, and
(c) any minimum period of ordered disqualification is, in respect of those crimes or offences, to be disregarded to the extent that the total period of ordered and (where relevant) automatic disqualification would exceed:
(i) where subsection (2) is applicable-12 months, or
(ii) where subsection (3) is applicable-2 years.
However, nothing in paragraph (c) prevents the court, if it thinks fit, from making any order it could have made if that paragraph had not been enacted.
(5) Disqualification in addition to any other penalty Any disqualification under this section is in addition to any penalty imposed for the offence.
(6) Relationship to Division 2 This section has effect subject to the provisions of Division 2.
CRIMES AMENDMENT (POLICE PURSUITS) BILL 2010
Agreement in Principle
Debate resumed from 25 February 2010.Debate resumed from 25 February 2010.
Mr GREG SMITH (Epping) [4.22 p.m.]: Nineteen months old Skye Sassine died when a getaway van being used by two alleged armed robbers smashed into a family Subaru on the M5 at Ingleburn just before 7.00 p.m. on 31 December 2009. The driver of the vehicle was subsequently charged with manslaughter, three charges of robbery with a firearm, dangerous and negligent driving, attempted carjacking and driving a vehicle without ever possessing a driver's licence. Following this tragic death there have been calls for the introduction of a specific offence to ensure the imposition of tougher penalties on criminals who lead police on dangerous high-speed pursuits.
Shadow police Minister, Mike Gallacher, who is also Leader of the Opposition in the Legislative Council, subsequently met with the Premier, Kristina Keneally, the Minister for Police and others in an attempt to adopt a bipartisan approach to this important legislation. Accordingly, the Liberals and The Nationals do not oppose this bill. However, we will be seeking in the upper House to move an amendment to it. The object of the bill is stated as creating a new indictable offence of failing to stop a vehicle and driving the vehicle recklessly, or at a speed or in a manner dangerous to others, after becoming aware that police officers are in pursuit of the vehicle. The bill also makes other consequential amendments, including licence disqualification for persons convicted of the new offence.
Turning in more detail to the bill, it will amend section 51B of the Crimes Act 1900 to introduce the offence of police pursuits. On my reading of the bill, I suggest that to prove someone is guilty of such an offence it will be incumbent on the prosecution to establish the following elements: that the driver of the vehicle knows that police officers are in pursuit of the vehicle and that the driver is required to stop the vehicle. These are important elements but difficult of proof. One could imagine a situation that apparently occurred recently where a driver was flagged over by police for a random breath test and failed to stop and drove on. At some point such an action would arguably fall afoul of this proposed provision, if the other elements were met, once the prosecution could establish that the driver was aware he was being pursued by police and that he was required to stop. It may not be that easy to prove; in fact, I think it will be very difficult to prove those two elements.
Further elements required are that the driver does not stop and then drives the vehicle recklessly or at a speed or in a manner dangerous to others. Therefore, the elements of the offence are not satisfied unless and until the driver drives in a manner dangerous to the public, having failed to stop when he was aware the police were in pursuit and he is required to stop. To confirm that this offence is considered serious, a person guilty of a first offence is liable to imprisonment for up to three years and for a second or subsequent offence for up to five years.
Today the Police Association has attacked this provision, saying it contains a loophole, with the onus on the police to prove errant drivers knew they were being pursued. The legislation has been dubbed Skye's law in honour of Skye Sassine. Just hours before this matter was to be debated in the House today the Police Association called on Premier Keneally to beef up the legislation. According to Australian Associated Press:
It wants her to "step in and save and rectify Skye's law", which is says the Attorney General's Department watered down.
The Australian Associated Press report quotes Police Association vice-president Scott Weber as saying:
Our experts in the traffic department, and our experts in legal, the solicitors, have said "this law is not workable."
The report continues:
The law requires police to prove a driver knew they were being pursued and were required to stop.
"The driver involved in a police pursuit, that's trying to evade police. The onus should be on them to say that they did not know that they were in a pursuit."
It seems to us to properly carry out what was proposed in the first place an amendment along the lines of the following would be appropriate: that section 51B read:
The driver of the vehicle being pursued by police officers who does not stop the vehicle and who then drives the vehicle recklessly or at speed or in a manner dangerous to others is guilty of an offence.
That a new subsection (3) be added:
It is a defence to an offence under subsection (1) if the driver had a reasonable excuse, proof thereof shall lie on the driver, for not stopping the vehicle.
This is without the finessing of Parliamentary Counsel, but it is what I submit to the House is a more appropriate provision. There may be cases where there are no other offences a driver could be charged with. For example, the police may not be able to prove that the driver had been involved in a robbery or a conspiracy to rob. The driver may well have been involved in some sort of plan, but the police cannot prove it. Nevertheless, he has endangered life by driving away at high speed and zigzagging through the streets while being pursued by police. Just doing that is endangering the public and is probably causing alarm to passers-by, pedestrians and other drivers on the road, so it is appropriate.
I note that under section 39 of the Police Powers and Responsibility Act 2000, relating to failure to comply with directions, a person must not, without reasonable excuse, fail or refuse to stop a vehicle that a person is driving when directed to do so by a police officer or fail or refuse to comply with any other direction given by a police officer. The provision has a maximum penalty of 50 penalty units or 12 months imprisonment or both. The onus is on the driver to show a reasonable excuse on the balance of probabilities.
The Opposition proposes to put a similar provision on the defence because on occasions the Crown has to disapprove the reasonable excuse. On occasion the accused does not give evidence or call any evidence on his or her behalf and the Crown, as part of its case, must prove that the accused did not have a reasonable excuse. That can be done by circumstantial evidence or by admission. I note also that the Queensland legislation deals with similar offences. Section 754 of the Queensland Police Powers and Responsibilities Act 2000 specifies a three-year penalty. It states:
(1) This section applies if, in the exercise of a power under an Act a police officer using a police service motor vehicle gives the driver of another motor vehicle a direction to stop the motor vehicle the driver is driving.
(2) The driver of the motor vehicle must stop the motor vehicle as soon as reasonably practicable if a reasonable person would stop the motor vehicle in the circumstances.
Maximum penalty—200 penalty units or 3 years imprisonment.
Reference is made to "a reasonable person", an objective standard. Section 51A of our dangerous driving laws contains the concept of what a reasonable person would think about whether a driver was driving dangerously. In that case the prosecution does not have to prove anything. Queensland has picked up on that type of provision by prescribing 200 penalty units or three years imprisonment and provides deeming provisions that make it easier for the prosecution. Section 754 of the Queensland Police Powers and Responsibilities Act states:
(4) For subsection (2), it is sufficient evidence of the commission of the offence if the evidence is that the driver, in failing to stop, took action to avoid being intercepted by a police officer.
(5) Also, for subsection (2) it is immaterial that the driver had a mistaken belief that the motor vehicle from which the police officer was giving the direction was an emergency vehicle unless the driver proves, on the balance of probabilities, that a reasonable person in the circumstances would have believed the motor vehicle was an emergency vehicle.
Again, it is the test of a reasonable person, an objective test; not where one has to proved guilty intent. An emergency vehicle is an ambulance or a fire or rescue vehicle. I gather that South Australia has different legislation. Certainly the Queensland legislation does not place as heavy a burden on the prosecution as that proposed by section 51B nor would the Opposition's new provision. If the Government were fair dinkum in intending to protect the community and children like Skye Sassine it would not include proving the driver is aware police are in pursuit and is required to stop the vehicle. Many people play music and drive with their windows up, so they may not hear the siren. They might even say they usually drive at 180 kilometres an hour.
Mr Barry Collier: They might get in the witness box and say that.
Mr GREG SMITH: Or he might be caught by a flying pig. The Government offered hope to the community and to the family of Skye Sassine. We are giving them the chance to make the legislation less cumbersome for the prosecution so there can be more convictions. This is in the hope that the Crown has some chance of convicting people who drive at great speed and risk life and limb, not only theirs but also those of other motorists, police officers and pedestrians. It will not be a deterrent if people are charged and acquitted of these offences. That is the reason the dangerous driving provisions were introduced.
In the old days very few people charged with manslaughter were convicted, because juries realised that manslaughter carried life imprisonment and they were scared that people would be jailed for life. Many people were convicted of dangerous driving after those provisions were introduced, although it was sometimes hard to get a conviction for dangerous driving at Liverpool. These cases usually involve people who are the pillars of society, not people with criminal records. Therefore, the accused raise their good character, maybe suggesting the fact that the sun blinded them as a mitigating factor, and so forth.
In the case of police pursuits, a person is deliberately avoiding apprehension and being questioned or charged. The legislation should be watered down to avoid being too strict. Section 188 of the Road Transport (General) Act provides for disqualification of a person's driver's licence for certain major offences. That is amended to include the new section 51B. The Liberals-Nationals support strong action to deter people from involvement in pursuits that lead police on a merry chase and put lives at risk. We also support having provable and practical offences so that the community can be confident than when people are charged there is a fair chance of a conviction.
Mr FRANK TERENZINI (Maitland) [4.38 p.m.]: I support the Crimes Amendment (Police Pursuits) Bill 2010. The bill arises from terrible circumstances and has become known as Skye's law. I turn to some comments made by the member for Epping. He gave the example of someone driving down the road with the windows up and not hearing the siren. In the situation leading to this bill the culprits had committed an armed robbery using a firearm. It was not a case of these people simply driving down the road with their windows up, not looking out for what was going on; this was a high-speed chase that resulted in a tragedy. The bill has been introduced because of the terrible circumstances that occurred on that day, and because of people choosing to evade police, which resulted in a high-speed pursuit. We must keep that in mind when we debate this bill.
We are not talking about someone who is driving down the road with their windows up listening to the radio who receives a direction from the police to pull over. We have a section that deals with that offence, namely, section 39 of the Law Enforcement (Powers and Responsibilities) Act. The offence is failure to stop as a result of a direction. What the member for Epping did not tell us is that the people who are dealt with under that provision must have received a direction from the police to pull over or stop. The reasonable excuse attached to that offence is that the person had a reasonable excuse not to follow that direction. That covers someone failing to heed a direction of the police to stop and having a reasonable excuse.
At the other end of the spectrum, however, we have offences such as dangerous driving causing death or grievous bodily harm. The penalties are 7 years to 11 years for dangerous driving causing grievous bodily harm and 10 years to 14 years for dangerous driving causing death. If a person evades the police under those circumstances the person must have had an accident, or killed someone or maimed someone, before the pursuit can be used as an aggravating feature. If a person who commits dangerous driving tries to evade police, currently the act of evading the police is not an offence. The dangerous driving causing death would be an offence, but the pursuit would be used as an aggravating feature for the offence of dangerous driving. The bill fills in the gaps between those two extremes.
The bill deals with the situation where a police officer wants to stop a vehicle or someone tries to evade police. Usually an incident has happened, although not necessarily, and the culprit wants to evade the police. The police act according to their policies and procedures, which have recently been revised, and they take these matters very seriously because of the potential dangers. We cannot have a situation where people commit offences and expect that police will not pursue them. The bill deals with the situation where a person commits an offence, the police want to apprehend them, and the person makes the decision to evade the police, resulting in a high-speed pursuit.
As a person working in the law for more than 10 years as a police prosecutor I prosecuted an enormous number of offences involving a police pursuit that ended in an accident. The police pursuit was not the offence; rather, it was the driving in a manner dangerous or, more often than not, a less serious matter that resulted in a serious matter. The bill sends out a clear message to everyone in the community who has the intention to evade police as a result of something the police have caught them doing or think they are going to do. It is very important to make that distinction. I do not think the member for Epping in his contribution pursued the matter of this onus very much at all. As a former police prosecutor himself, he knows that the bill and the Act it amends adequately deal with the offence.
The comments that have been made about the bill being too strict and about the loophole do not find any favour with me, and I will explain why. For example, the Opposition has put out media releases calling for the loophole to be closed, but it does not say what the loophole is. Nowhere in the Opposition's media release can one see what the loophole is, because the Opposition does not tell us. The member for Epping, the shadow Attorney General, in his contribution did not say anything about a loophole. He knows there is no loophole. He simply touched on the matter, saying that the way the Opposition will deal with the matter is by including a provision regarding the defence of reasonable excuse—which a defendant could raise any day of the week. Any member of this place who has studied criminal law knows that the defence of reasonable excuse can be raised at any time; it does not have to be enshrined in legislation.
The member for Epping knows that an intention to commit an act is deemed from the surrounding circumstances—for example, lights flashing, driving at high speeds, or swerving around corners. All these factors go towards the issue of intention on the part of the defendant and knowledge in the mind of the defendant. That is how the criminal law works: it has always worked like that. That is how the criminal law works in relation to the offence of failure to stop, the offence of driving in a manner dangerous, and the offence of driving dangerously. The offence created by the bill simply fills in the gap.
Earlier this afternoon the Premier spoke about the Government's attempts to get bipartisan support for this bill from the Opposition police spokesperson, Mr Gallacher, in the upper House. Mr Gallacher was involved in the consultation process: he was involved in the discussions about the bill. He put forward his contribution about the bill, and he was invited to make that contribution. Any good government would make such an invitation. Did Mr Gallacher raise an issue along this line? No, he did not. He did not raise this matter at all. So why is it that now in this House we have that discussion? I ask: Why is it that we now talk about the prosecution having to prove knowledge as an obstacle? Mr Gallacher thinks he is an expert on these matters. A cynic looking at the media release might say that Mr Gallacher just wants that five-minute grab. He just wants to have those loud words—
Mr Ray Williams: A five-minute grab?
Mr FRANK TERENZINI: A seven-minute grab, or a five-second grab. Mr Gallacher just wants to put those loud words out there to score some political points. He had his opportunity to raise the matter during the discussion process, but he did not, and that is very telling. This provision follows the rules of the criminal law. A person trying to evade police at high-speed, accelerating away after having committed an offence, swerving around corners and going through built-up areas with the police chasing, would know that they are being pursued. Certainly someone who is driving down the road listening to the radio and doing the right thing with their car windows up might not hear the siren of an ambulance or a police car, but they are totally different circumstances.
It must be kept in mind that the reason the bill has been introduced in this House is those terrible circumstances that occur all too often, and on this occasion resulted in a tragic death. We do not want to play politics with this. That is why we have asked the Opposition to help us. That is why we have asked the Opposition to take part in the consultation process. The bill is not about politics; it is about introducing good law so people know that if they try to evade police and it results in a pursuit they will be dealt with according to the law. What we know as a pursuit is when a driver breaks the law, driving at high speed through a township with a police officer chasing them in a highway patrol car or other vehicle. If anyone wants to suggest to me that under those circumstances the person may not know they were being pursued, I am all ears; they can try to prove that to me—
Mr Alan Ashton: It's fanciful.
Mr FRANK TERENZINI: It is fanciful. In my experience, that just does not make sense. I hear what the member for Epping says about his amendment. I believe the provision is sound, the elements are sound, and the objective circumstances, if they were there, would make it rather easy for the Crown to prove that there was a pursuit and the defendant knew that there was a pursuit. I understand the member for Epping said that the Opposition would move an amendment in the upper House. My firm view is that the offence is sound as it is; if it were not, certainly people such as Mr Gallacher or the member for Epping would have raised it—
Mr Geoff Provest: It's the association—
Mr FRANK TERENZINI: No, we are talking about parliamentarians in the consultation process. I say to the member for Tweed, lawmakers that would have raised it—
ACTING-SPEAKER (Mr Thomas George): Order! The member for Maitland will direct his comments through the Chair. I am sure he will make similar rulings in the future.
Mr FRANK TERENZINI: I am not sure of the standing order but no doubt I soon will be. The bill is in place to fill up that gap. It is a sound provision. I commend the bill to the House.
Mr ROB STOKES (Pittwater) [4.50 p.m.]: I speak to the Crimes Amendment (Police Pursuits) Bill 2010. I will address a couple of comments made by the outgoing member for Maitland—
ACTING-SPEAKER (Mr Thomas George): Order! Members will direct their remarks through the Chair.
Mr ROB STOKES: The member for Maitland said that this law was prompted by the tragic death of Skye Sassine, and all members are mindful of the circumstances behind the creation of the bill. He also said that this law should be interpreted in the light of that tragedy, but we need to go beyond that. This law applies to all sorts of future situations, not just what occurred on New Year's Eve 2009. The Liberal-Nationals Coalition has long championed sending a clear message that a cowardly flight in a motor vehicle from police officers simply doing their job is a crime. The statistics on police pursuits reveal an appalling lack of respect for the law. In this State police are involved in approximately five pursuits daily. Clearly something needs to be done but cancelling police pursuits, as argued by some, is not the answer. As Assistant Commissioner John Hartley told the Sydney Morning Herald recently:
It would be a free-for-all if criminals knew police would not chase them.
We rely on our police to catch criminals so they can be brought to justice. To catch criminals police need to follow them. The bill corrects the view that somehow police are doing the wrong thing if they chase crooks. People are criminals if they speed away from police in a dangerous manner and those people are entirely answerable for any damage they cause. When someone speeds away from police they assume moral liability for everything that happens from that moment on. They are responsible for whatever tragedy ensues. Darren Palmer addressed this matter in a recent article in the Alternative Law Journal entitled "'Hot pursuit': law enforcement practice and the public interest". In that article he talks about high-speed and high-risk pursuits introducing moral hazards, which he defines as:
A moral hazard is created when the actions of one party foster behaviour of another party in the relationship in ways that immorally increase the risk to other parties. In the case of police pursuits, the moral hazard occurs when police action increases the risk to other parties—drivers of pursuit vehicles, their passengers (who will have varying degrees of influence on the driver), other road users, and pedestrians. The question becomes one of whether the police are acting morally when engaging in high-speed pursuits, and what variables operate along a continuum from moral to immoral.
I strongly disagree with the insinuation in that article of the moral position of people involved in a flight from police officers. Those people assume moral responsibility for what happens, not the police officers. The bill will go some way to correcting the bizarre and offensive conclusion expressed by some that where a vehicle drives away from police somehow the police are to blame if that vehicle causes damage, injury or death to innocent third parties. The police make it very clear that pursuits are an instrument of last resort. Police do not pursue vehicles lightly or willy-nilly; it is done because no alternatives are available to them. Because pursuit is an instrument of last resort, police need to take the action they believe to be reasonably necessary to apprehend people who have committed crime. Even though police pursuits are a matter of last resort it is appalling that in this State there are five police pursuits daily.
The principle behind the bill reinforces the idea that police officers demand and command respect. Troublingly, a person running away from a police officer in this cowardly manner basically does not respect the law. A lawful order from a police officer requires obedience, and our social order depends upon this principle. The bill will go some way to reinforcing the respect that is due to our police officers. The intent of the bill is to make it clear that, regardless of why a police officer requires a driver to pull over, if that driver fails to stop then that disregard and disobedience is a serious crime, and the cowardly driver running away from the police in a reckless manner is to blame for the consequences of their cowardice.
Whilst the principles addressed by the bill are important, the design of the bill leaves a lot to be desired. Police have real concerns about their legal liability in a chase. We have an obligation to protect our police officers but the bill is silent on the issue of strengthening immunity from action in tort if damage ensues from a police pursuit. There have been instances where police officers have been sued in tort, in negligence, for damage as a result of a police pursuit. Police operate in an incredibly difficult environment and they have to make split-second decisions that involve discretion. We need to protect them from the consequences of their decisions, provided those decisions are reasonable and defensible. We need to ensure that police officers are properly and adequately protected from action in tort for the consequences of a police pursuit.
When speaking to the substance of the bill the member for Maitland raised a couple of things. I wrote down his words at that time because a few assumptions made by the member are not directly stated in the bill. First he said that after committing an offence a person speeds away and swerves around corners to evade police. How can an offender not know that he is involved in a police pursuit? The bill does not suggest that after committing an offence speed is required, nor is swerving around corners. In fact the bill is quite specific. It does not say anything about the pursuit being after the committing of an offence; it simply says a driver of a vehicle who knows a police officer is in pursuit of his or her vehicle is required to stop the vehicle. If the driver then drives the vehicle recklessly or at a speed or in a manner dangerous to others he or she is guilty of an offence. It does not say anything about whether the person had previously committed an offence and was leaving the scene of a crime—that may or may not be the case.
The member for Epping raised the question of a driver of a vehicle who knows that police officers are in pursuit of their vehicle: the element of knowing that police are in pursuit. The member for Maitland would know from his criminal law practice that the criminal standard of proof—beyond reasonable doubt—would apply to the level of consciousness of the offender as to knowing if the police were in pursuit. Reasonable doubt could conceivably be established by potential arguments about things such as loud music in the car so the sirens could not be heard, concentration on the road ahead, the police vehicle not being marked, the sun impeding the driver's rear vision, or if a couple of vehicles were involved the offender could argue that he or she was not aware which vehicle the police were chasing, or the police perhaps speeding away to apprehend an offender elsewhere or to attend an emergency. I am sure we have all heard sirens behind us and wondered where the police car was heading and if we should pull over. It is our job is to consider those potential arguments when crafting laws to be enforceable and effective.
The member for Maitland has again made a reference to speed. Speed might be a factor but it does not necessarily need to be a factor in the bill. Swerving might be a factor; it does not necessarily need to be a factor. We must address this serious question and establish that the offence includes not only the offender knowing he is being pursued but also that he should reasonably know. Therefore, in some circumstances the consciousness of the offender that he is committing the offence can be inferred from the situation. We must ensure that is established, given that a criminal standard of proof applies, that is beyond a reasonable doubt. The matters I have mentioned may sound fanciful in this House but in a courtroom they could go towards establishing a reasonable doubt. We must consider those issues. Proposed section 51B (1) (b) refers to a driver "who does not stop the vehicle". What is the prescribed time in which a suspect has to stop the vehicle? That has to be made clear. Although some leniency has to be made to allow a driver to pull over safely, what is the prescribed time to allow a driver to stop? While the Opposition totally agrees with the intent of the bill and believe it is important legislation, we have to address the mechanics of the bill.
Mr Frank Terenzini: That is the job of the courts.
Mr ROB STOKES: The member for Maitland interjects, "That is the job of the courts". We do not want this legislation to end up in legal arguments over technicalities. We want it to send a clear message that running away from police in pursuit is a serious crime. We do not want to leave it to the courts to decide on technicalities. We want to make it very clear to the courts the intent of the people of New South Wales, as expressed through this Parliament. We have to get this legislation right. It is not good enough to say that we can leave those issues to the courts. The people of New South Wales require better from us. They require us to be clear about the intent of the legislation we pass. It has to be made clear that respect for the law is not an option. Many members would be aware of situations in their communities where there is a lack of respect for the law. We have to send a clear message through the laws we pass in this place that disobeying police officers will not be tolerated. When a police officer gives a lawful order for a car to pull over the driver must pull over straightaway. If the driver does not pullover he or she is committing a serious offence.
Mr BARRY O'FARRELL (Ku-ring-gai—Leader of the Opposition) [5.02 p.m.]: I appreciate the Parliamentary Secretary's leave to contribute to debate on the bill. As the member for Pittwater and the member for Epping said, the Opposition supports Skye's law. It was an initiative of the shadow Minister for Police, the Hon. Mike Gallacher, and the Daily Telegraph, which published the story on 4 January 2010. Despite the early intervention of the Minister for Police rejecting the proposal, later that morning the Premier sought a meeting. As a result, we now have, as the member for Pittwater said, what is meant to be effective legislation to deal with those who wilfully seek to flee from police and in the process put at risk the lives of themselves, of police and, in particular, of people like Skye.
At 1.30 p.m. today we saw the extraordinary spectacle of the Police Association of New South Wales, which represents every police officer in New South Wales, issue a press release describing the law before the Parliament as virtually useless. It is virtually useless because between 4 January 2010, when agreement was reached by the Government and the Opposition on this initiative, and the introduction of the bill on Thursday 25 February 2010 the Minister for Police, the Attorney General or others—figures unknown—managed to water down the legislation. As the Police Association said, it is now virtually unworkable because of the State Government's decision to allow a get-out-of-jail-free card for people who seek to flee police.
My reason for speaking on this legislation is not just to express our broad support for Skye's law or to restate our support for New South Wales police officers on the front line, the people who lobbied and spoke to Mike Gallacher, the shadow Minister for Police, and helped him frame the legislation before us today, with one, large, glaring exception. It is also to set the record straight. In Question Time today when I asked the Premier about the Police Association's description of the current bill and, in particular, proposed section 51B (1) (b), she asserted that the legislation reflected the agreement with Mike Gallacher on 4 January 2010. I have a copy of the five points raised by Mike Gallacher on 4 January. They are the points that he, together with the Daily Telegraph, used that day for a story that started the process of producing this legislation. Those points were:
1. Create an indictable offence, as opposed to the existing summary offence.
2. Raise the maximum penalty to three years for the first offence, and five for the second subsequent offence in line with existing Queensland and South Australian legislation.
3. Enforce car confiscations for those found guilty of engaging Police in a pursuit.
4. Suspend the licences of those engaging Police in a pursuit.
5. Educate learner and provisional drivers about the tough penalties for such actions as part of getting their licences.
They are all very sensible initiatives from the Liberal-Nationals Coalition, advanced by the appropriate person, the shadow Minister for Police, and taken up by the Daily Telegraph. All the way through the shadow Minister for Police spoke about the Queensland and South Australian legislation. The Queensland and South Australian legislation does not provide for a get-out-of-jail-free card that involves the excuse "I wasn't aware". Under this legislation O. J. Simpson, following that well-known police pursuit, which was not as fast as some serious cases, could have said, "I was listening to opera. I was listening to hip-hop music. I didn't hear the police sirens." That is not an excuse. The death of Skye is a reason why it must not be an excuse. Those who wilfully break the law and wilfully disobey road rules should not have the equivalent of the O. J. Simpson defence and claim "I didn't know".
The Queensland and South Australian legislation that Mike Gallacher used to put forward the genesis of this bill and also used on 4 January 2010 in his discussion with the Minister for Police, who that morning did not support the bill, and the Premier, who claims that she does support the bill, does not match the legislation before the House. The Opposition will amend the legislation in the upper House. As the shadow Attorney General has reported to this Chamber, I am pleased to note that the Attorney General is finally looking at the amendment to see whether it can be accepted. It is a long way from where we were this morning, and it is a long way from where the Premier would have us believe we were at lunchtime. It is heading in the right direction, but as Morris Iemma, one of those past historic Premiers of New South Wales, would say, "There is a lot more to be done."
Mr NINOS KHOSHABA (Smithfield) [5.07 p.m.]: I speak in support of the Crimes Amendment (Police Pursuits) Bill 2010. The bill amends the Crimes Act 1900 to support the valuable work of the New South Wales Police Force in keeping our roads safe and putting dangerous criminals behind bars. The people of New South Wales and the people from my electorate of Smithfield have high expectations of the Police Force to keep their roads and streets safe. And so they should. But that foolish and menacing minority that flout the law and think they own the roads is putting everyone at risk. We all drive, walk or cycle each day in confidence that no-one else is deliberately out to cause us harm. But as soon as someone chooses to flee from police and engage a police vehicle in a high-speed chase, that is exactly what they are doing—they are deliberately choosing to put us at risk.
This bill and the offences it creates will give these reckless, irresponsible and stupid individuals a clear message: They cannot drive and have police either let them go or concede to their desire to replay a French Connection-style car chase. Our streets are not a Hollywood film set. Our children and our elderly parents cross them every day. We use them to drive to work and to visit family, and we expect to arrive safely. The idea that speeding away from a police vehicle is an acceptable thing to do is as foreign to us as Hollywood is to this place.
Yet there remain those offenders who believe they can speed away from police and that they have the driving skills to do it. Both beliefs are flatly wrong. They do not have the right to evade police and they certainly do not have the capacity to do so safely. In the face of this mistaken and unlawful bravado the Government has no choice but to come down hard on them. Our police will do what they must to keep us safe, and we must support them with the means to do so. However, they take into consideration the impact of their actions in keeping us safe.
Policing has to be able to adjust to meet a threat wherever it comes from. Police pursuits are always conducted in a way that maximises public safety. The police abide by strict guidelines. They are well trained and diligent in their driving behaviour. But this has not been enough. Relying on police to do the right thing has not deterred offenders from doing the wrong thing, and the law-abiding communities have suffered as a result. The legislation will ensure that criminal hoons who attempt to evade police and engage in pursuits will face severe penalties for their outrageously dangerous behaviour. My sympathies go to the family of Skye Sassine and to any family that has suffered injuries or lost a loved one in such incidents. I hope that such tragedies become a thing of the past.
The community is grateful to the Premier for her speedy announcement of this law following that dreadful incident. I take this opportunity to express my appreciation to police officers all over New South Wales, but in particular to the Fairfield Local Area Command for their commitment and service to my electorate of Smithfield. I will quickly touch on some comments made by Opposition members, particularly the member for Epping, the member for Pittwater and the member for Ku-ring-gai, who are using debate on this bill to assert that there are loopholes in the legislation that enable the driver to use the excuse that he or she did not hear the sirens or did not realise that he or she was being chased. Those types of excuses are rubbish.
ACTING-SPEAKER (Mr Thomas George): Order! Members will direct their comments through the Chair.
Mr NINOS KHOSHABA: In a police pursuit it is obvious that the driver knows he or she is being followed by police and is trying to get away. As the member for Maitland said in his contribution, such drivers drive recklessly, drive fast and take corners at high speeds. I note that the member for Tweed is in the Chamber. Every time he speaks in the House he comments that he is 100 per cent for the Tweed. I ask him to support this bill wholeheartedly so that he can go back to his constituents and his local area commander and tell them that he supported this bill, rather than talk down the police. I am not saying that the member for Tweed has done that, but I ask him to support this very important bill. I also call on the Opposition to stop making the role of police officers more difficult and to support the bill wholeheartedly, which in turn will not only support the police force but also the wider community in their electorates. In conclusion, I thank my colleagues the Attorney General and the Minister for Police for developing the bill. I commend it to the House.
Mr DAVID HARRIS (Wyong—Parliamentary Secretary) [5.12 p.m.]: I speak in support of the Crimes Amendment (Police Pursuits) Bill 2010. The incident that gave rise to the legislation can only be described as a tragedy. Young Skye Sassine should not have died when she did, nor in the manner in which she did. All of us in this House could be in the same position: people are driving recklessly away from the police and we, as innocent bystanders, could suffer the same fate. The bill seeks to reduce the likelihood of such a tragedy ever occurring again. The new offences in the bill should make criminals think twice before leading police on a dangerous, high-speed pursuit, potentially endangering their lives and the lives of others. The bill introduces tough penalties, including imprisonment and licence disqualification—regardless of whether the pursuit ends in injury or death.
The bill is part of the Government's commitment to making New South Wales a safe place. It is this same commitment to public safety that is embodied in the hard work and dedication of the men and women of the New South Wales Police Force in keeping our roads safe from reckless drivers by targeting speeding, drink driving and unsafe vehicles, and using random breath testing, roadside drug testing, radar and good old-fashioned police work. An unfortunate fact of life is that keeping the community safe from crime means police pursuits are sometimes a necessity. We cannot say to criminals that all they need to do to avoid capture is to ignore a police direction to pull over and just drive away. The New South Wales Police Force commitment to safety means they follow a strict set of procedures when engaging in pursuits.
The Police Safe Driving Policy ensures police conduct pursuits in the safest possible manner. The Safe Driving Policy has been reviewed by and incorporates the advice and recommendations of oversight agencies such as the New South Wales Coroner and the New South Wales Ombudsman. Police also receive advanced driving training that prepares them for driving in high-speed pursuits and gives them the tools they need to ensure maximum safety for themselves and others if they are forced into a high-speed pursuit. Ideally, a pursuit will never happen. But we do not live in an ideal world. Hopefully, the bill will make criminals think twice before accelerating away from police.
The bill will make it an offence to participate in a pursuit while driving in a reckless or dangerous manner. The offence has three elements: first, the offender knows he or she is in a pursuit with police and is required to stop; secondly, the driver does not stop the vehicle; and thirdly, the driver drives in a reckless manner or at a speed that is dangerous to others. The new offence carries a hefty maximum penalty of three years imprisonment for first-time offenders and five years imprisonment for repeat offenders. There are also licence disqualification provisions. First-time offenders will have their licence automatically disqualified for three years and further offences will result in a five-year disqualification. These offences will also form part of the Habitual Traffic Offender Scheme, which involves sanctions such as lengthy periods of disqualification, including lifetime disqualification for the worst offenders.
The bill ensures that an offender will be charged and receive an appropriate sentence for merely engaging in a police pursuit, even if all parties involved are somehow lucky enough to walk away from the incident unscathed. Some members of the Opposition have asked whether the offence should be strictly indictable. While the new offence is an indictable offence, provision has been made for it to be disposed of summarily in the local court unless a contrary election is made. This recognises that the new offence will cover a range of differing levels of criminality. While it is important to provide for appropriate offences to be dealt with on indictment in the District Court it is also necessary to ensure the flexibility of prosecuting suitable matters in the Local Court.
I welcome the bill, as does my community, who were all shocked and outraged at what happened to young Skye. They all know that it is something that could happen to any of them or to their children, friends or relatives. I hope the legislation makes people stop and think about what they stand to lose when they engage in a high-speed pursuit. I commend the bill to the House.
Mr STEVE CANSDELL (Clarence) [5.17 p.m.]: I support the Crimes Amendment (Police Pursuits) Bill 2010—Skye's law. I commend the Government for bringing it to the Parliament, but, as the Police Association has said, the bill is flawed. It is all right to talk tough but after telling offenders they are going to go to jail for three years for a first offence and five years for a second offence, they find there is a get-out-of-jail-free card. If offenders happen to have their car radio turned up, if they were not looking or if they were messing around with their phone—any excuse you want—they may get out of jail free.
If we had a perfect world this law would be perfect. Unfortunately, we do not have a perfect world and we do not have a perfect justice system either. As recently as a few months ago a child rapist in my area who could have received a maximum 15-year jail germ was given 12 months probation and told to be a good boy and wished good luck with his life. It was only that the shadow Attorney General, with my nudging, pushed and encouraged the Attorney General to jump on board to appeal the sentence that the offender was sentenced to some yeas in jail.
Mr Barry Collier: Point of order: I appreciate what the member for Clarence said and I participated in the debate about that terrible incident in his electorate. However, I draw him back to the leave of the bill, which relates to police chases and not sexual assaults.
ACTING-SPEAKER (Mr Thomas George): Order! The member for Clarence was referring to the less stringent application of penalties under other legislation. He will now return to the leave of the bill.
Mr STEVE CANSDELL: That case highlights the flaws in the justice system. We should clearly define the penalties to be imposed on people who are involved in police pursuits. The bill does not do that. When Skye Sassine was killed, the offence of leading police on a chase was covered by the Law Enforcement (Powers and Responsibilities) Act. Under that Act, it was a summary offence to fail to heed a lawful direction and it carried a maximum sentence of one year in prison. Figures obtained by the New South Wales Coalition reveal that only 15 people were confronted with the most serious penalty, 12 were fined, one received a community service order, two received bonds and charges against a juvenile were dismissed. No offender was jailed despite the fact that a prison term of one year was available. The same thing could happen under this legislation if it is not tightened up to ensure that anyone who ignores police directions will go to jail. We must make that very clear.
As long as proposed section 51B refers to the driver of a vehicle knowing that police officers are in pursuit, the legislation will be ineffective. An offender could say that he did not know he was being pursued because he was on the phone to his girlfriend or that the police siren sounded like his girlfriend's incoming call ringtone. Whatever the offender says, it will be an excuse. A magistrate or jury—if the case goes to a jury—might feel sorry for him or he may be seen as a bit dumb and not able to understand that the police wanted him to pull over.
As the member for Maitland said, we already have legislation covering dangerous driving and so on. He is correct and we are dealing with only 2 per cent of the population. However, an incident does not need to involve an accident. These people are driving extremely dangerously and illegally in an attempt to evade police. They could be a bunch of hoons who want to have a bit of fun with the police. Under this legislation, offenders could say that they were having a fight and did not hear the police siren or admit that they are idiots and they would be given a slap on the wrist and could walk away. The bill does have some good provisions, but the Government should carefully consider the Coalition's amendments. We all agree that the legislation should be tightened up. However, there is no point in doing that if we provide a get-out-of-jail-free card.
Mr ROBERT FUROLO (Lakemba) [5.25 p.m.]: I support the Crimes Amendment (Police Pursuits) Bill 2010. The bill introduces an important offence into the Crimes Act addressing the irresponsible practice of fleeing a pursuing police vehicle in a reckless and dangerous manner. There is understandably a high level of community concern surrounding this type of conduct, most notably illuminated by the tragic events of last New Year's Eve, which have already been touched upon and which no doubt will be in the minds of many as we consider the bill.
The penalties in the bill—three years imprisonment for a first offence and five years imprisonment for a second or subsequent offence—appropriately reflect the level of seriousness with which this type of conduct is viewed. The disqualification provisions attached to the offence ensure that offenders are removed from our roads for significant periods. It is important to remember that the bill does not seek to cover offences resulting from dangerous pursuits. A range of offences already applies to that type of conduct and very significant penalties are provided for circumstances in which serious injury or death is occasioned.
The new offence bolsters the existing armoury of offences, providing a conduit between lower level offences of failing to stop when directed and these more serious acts. The addition of this offence will serve to increase the level of deterrence in relation to this contemptuous and perilous practice. It will send a strong message to all drivers that if they engage in a dangerous police pursuit, even if it does not result in an accident or injury to others, they will face significant criminal charges. It is for all these reasons that I commend the bill to the House.
Mr VICTOR DOMINELLO (Ryde) [5.27 p.m.]: The Crimes Amendment (Police Pursuits) Bill 2010, or Skye's law, is a response to the tragic incident that occurred on New Year's Eve 2009. Skye Sassine was killed when her family's car was hit by that of two alleged bank robbers attempting to evade police on the F5 at Ingleburn. I understand that a meeting was held on 4 January 2010 between Premier Kristina Keneally and the shadow Minister for Police, the Hon. Mike Gallacher, to discuss proposed measures. The Coalition outlined five points that should be addressed in legislation covering police pursuits based on similar legislation enacted in Queensland and South Australia.
The five points articulated were that the legislation should create an indictable offence—as opposed to the existing summary offence; the maximum penalty should be increased to three years imprisonment for the first offence and five years imprisonment for a second or subsequent offence—that is again in line with the Queensland and South Australian legislation; the legislation should enforce car confiscation for those found guilty of engaging police in a pursuit; the licences of those engaging police in a pursuit should be suspended; and learner and provisional drivers should be educated as part of obtaining a licence about the tough penalties imposed for such offences.
The bill is the Government's response. It addresses only two-and-a-half of the Coalition's proposals. It increases the maximum penalties and addresses the suspension of licences. However, it is an appalling attempt to address the crux of the issue because it has not created an effective indictable offence and it has not provided for the confiscation of cars or the education of learner and provisional drivers. I would like the Parliamentary Secretary in reply to explain why the Government does not consider it appropriate to confiscate the cars of those found guilty of engaging police in a pursuit or to educate learner or provisional drivers about the tough penalties applied for these offences. The core of this bill is the indictable offence. The Police Association of New South Wales issued a press release this afternoon that makes a number of important points. It states:
Police are calling on the Premier to intervene and stop the watering down of Skyes Law when the legislation is considered in State Parliament today.
The Police Association of NSW said the law as it stands is unworkable and means lives will continue to be put at risk by reckless drivers trying to evade police
Against the advice of expert police in the traffic and legal areas, the Attorney General's Department has watered the law down to the point where it's virtually useless
The reality is that if the legislation passes as it stands, police will be unable to enforce it. Its up to the Premier now to step in and make sure Skyes Law is more than just a token PR stunt, to ensure it will deter reckless drivers from evading police and putting lives at risk.
I reminded members that this is not only our side saying this; this is the Police Association of New South Wales saying this. I am sure members accept that the association is independent of the Government, which is riddled with problems, and it is saying stop using this bill as a public relations stunt. The association is saying the law is virtually useless, and we echo these calls.
The reason we and the Police Association say it is useless is f the issue of knowledge. Proposed section 51B states that the driver of the vehicle who knows that police officers are in pursuit is required to stop the vehicle, and then it continues. The crux of it is "who knows". Effectively, the prosecution will have to establish the accused had actual knowledge of the pursuit. The member for Pittwater and the shadow Attorney General have already stated convincingly the very grey areas where problems could arise in prosecutions. I have stated in this House many times that unless laws are effective there is no use putting them into print. We are just wasting time and wasting more money. Let us make laws that are effective and will act as a real deterrent. Unless we do that, confidence in the whole system is completely eroded. I repeat: The Police Association, which is dealing with this on a day-to-day basis, is saying this law is ineffective. I cannot understand why the Government is not coming to its senses and listening to what we are saying.
It is not as though there is no precedent for importing knowledge or dealing with this issue of knowledge in criminal offences. Section 52AB of the Crimes Act, which was introduced on 13 February 2006, relates to the offence of failing to stop and assist after vehicle impact causing death or causing grievous bodily harm. Section 52AB (1) says:
A person is guilty of an offence if:
(a) a vehicle being driven by the person is involved in an impact occasioning the death of another person, and—
and I emphasise this—
(b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person
At least there was an attempt in that legislation to get over the problem that the Police Association has identified in the words "ought reasonably to know". I had a cursory look at the Crimes Act and the law relating to the words "ought reasonably to know". There does not appear to be any specific judicial consideration of the term in the context in which it appears in the Crimes Act. However, the term "ought reasonably to have known" has been considered in a case concerned with a breach of the Copyright Act. It is a Federal Court decision of Pontello v Giannotis 1989 16 IPR 174. In his decision, Justice Sheppard at page 176 considered the judgement of Justice Matheson in Hooi v Brody 1984 52 ALR 710, where Justice Matheson referred to the comment of Justice Devlin on the word "knowledge" in Taylor's Central Garages Exeter Ltd v Roper 1951 WN 383 at 385:
The third sort of knowledge is what is generally known in the law as constructive knowledge. It is what is encompassed by the words "ought to have known" in the phrase "know or ought to have known". It does not mean actual knowledge at all. It means that the defendant had effect the means of knowledge.
It is interesting to note that the Commonwealth Copyright Amendment Bill 2006 removed the term "ought reasonably to know" from some sections of the Copyright Act. In the accompanying explanatory memorandum the reasons behind the decision to remove the term were explained as "formulations of this kind are an attempted compromise between requiring proof of fault and imposing strict liability but are uncertain in their application in a criminal offence".
Notwithstanding the limitations and caveats of the words "ought reasonably to know", I also call on the Parliamentary Secretary to indicate why those words not have been adopted as part of this bill to give at least a little bit more strength to the bill and allay the Police Association's concerns in relation to it. If the Parliamentary Secretary is of the view that the words "ought reasonably to have known" are inappropriate in light of the amendments to the Copyright Act, why do those words still appear in section 52AB in relation to offences relating to stop and assist after vehicle impact causing death or grievous bodily harm, noting that that offence is also a very serious offence carrying maximum terms of imprisonment of 10 years in the case of death and seven years in the case of grievous bodily harm?
Ms MARIE ANDREWS (Gosford) [5.36 p.m.]: I am pleased to support the Crimes Amendment (Police Pursuits) Bill 2010. In so doing I congratulate the State Government on introducing this bill in a bipartisan manner and also as a timely response to a tragic incident in which a young infant's life was lost. As the member for Ryde alluded to, the Police Association has called for mandatory sentencing and questioned why it is not appropriate to include the offence in the standard non-parole period scheme. The Government does not support mandatory sentencing. International and domestic experience of mandatory sentencing regimes indicates that it does not reduce crime, leads to unnecessary acquittals, shifts sentencing decisions from judges to lawyers and damages the interests of victims of crime. Mandatory sentencing demands that the same penalty should apply to an offence, irrespective of the circumstances in which it occurred.
The Government believes that, when determining a sentence, it is appropriate for the court to exercise discretion to take account of particular facts of the case. These factors include the criminal record of an offender, the circumstances in which the offence was committed and the impact of the crime on its victim. While the Government has implemented the scheme of standard minimum sentencing, where standard non-parole periods have been set for certain serious criminal offences, this scheme, unlike mandatory sentencing, preserves judicial discretion to ensure that the criminal justice system is able to recognise and assess the mitigating and aggravating factors of an individual case.
The new offence has not been included in the standard non-parole period scheme for the following reasons. First, it is a brand-new offence. It would be premature to include the offence in the scheme before the judiciary has even had the opportunity to exercise sentencing functions in respect of it. Second, the offence covers a broad range of circumstances and is intended to cover the gap between the lowest range of offending—failed to stop—and the most serious—causing grievous bodily harm or death. The scheme currently includes more serious offending involving penalties of at least seven years imprisonment.
Finally, the Sentencing Council is currently examining a range of issues relating to the standard non-parole period scheme, including the identification of potential additions to this scheme, the levels at which standard non-parole periods might appropriately be set and the establishment of a transparent mechanism by which a decision is made to include a particular offence in the scheme. Accordingly, it would be prudent to await the release of the council's report before making any changes to the current composition of the scheme. I commend the bill to the House.
Mr GEOFF PROVEST (Tweed) [5.39 p.m.]: The object of the Crimes Amendment (Police Pursuits) Bill 2010 is to create a new indictable offence for failing to stop a vehicle and driving the vehicle recklessly, or at a speed or in a manner dangerous to others after becoming aware that police officers are in pursuit of the vehicle. Sadly, this bill results from the death of young 19-month-old Skye Sassine, who was killed when the family car was hit while two alleged bank robbers were attempting to evade police on the M5 at Ingleburn. The resultant community outcry led to calls for tougher penalties for those engaged in unlawful pursuits. I have been given permission to accompany my local police on several of their night shifts. On one occasion I was in an unmarked police car that was engaged in three or four pursuits. In all those cases the drivers were unaware for some time of the police pursuit, even though the police lights and sirens were on. In some cases, the drivers did not pull over for two or three kilometres, so awareness is an issue.
I take on board the comments of the Leader of the Opposition and the shadow Minister for Police. They outlined a five-point proposal. The first point was to create an indictable offence as opposed to the existing summary offence. Second, we should raise the maximum penalty to three years for the first offence and five years for the second subsequent offence in line with existing Queensland and South Australian legislation. My electorate of Tweed borders Queensland and any cross-border issues are of concern to me. I have been advised that the Queensland legislation is a lot tighter than the New South Wales legislation. Unfortunately, in the last two years a number of deaths have resulted from police pursuits. In all cases the alleged offenders, in a motor vehicle or on a motorbike, lost their lives.
The third point was to enforce car confiscations for those found guilty of engaging police in pursuit. The fourth was to suspend the licences of those engaging police in a pursuit. I ask the Parliamentary Secretary in reply to outline the impact of the legislation on Queensland licensed drivers and licensed vehicles. Although I acknowledge that they come under the jurisdiction of New South Wales, there have been cases of urgent modification to legislation. I even moved a private member's bill where confiscation laws, particularly where novice driving and drink-driving did not apply to Queensland because of a loophole in the legislation. I ask the Parliamentary Secretary to respond to cross-border issues.
Mr Barry Collier: Our legislation is better than theirs. You have your response.
Mr GEOFF PROVEST: I would like a little more detail.
Mr Alan Ashton: Anything they can do, we could do better.
Mr GEOFF PROVEST: That is not quite right. Let us not go there because the Queensland Labor Government does a lot of things better than this Government. Section 51B of the bill amends the Crimes Act 1900 as follows:
(1) The driver of a vehicle:
(a) who knows that police officers are in pursuit of the vehicle and that the driver is required to stop the vehicle, and
(b) who does not stop the vehicle, and
(c) who then drives the vehicle recklessly or at a speed or in a manner dangerous to others,
is guilty of an offence.
That is fine when the driver is aware. It is a question of when the driver is aware of the police pursuit. As I said, I have been involved in police pursuits on a number of occasions and I stand 100 per cent behind the men and women of my local police force. For too long we have not provided them with the necessary tools to keep our streets safe. For too long Government legislation has not truly reflected community concern and desire. This bill is a step in the right direction and contains a number of positive elements. However, I am sad that it has taken the death of the innocent 19-month Skye for this legislation to be introduced.
Many deaths have resulted from police pursuits over the last 14 years of the Government's watch, yet it has taken this death to trigger Government action. If the Government had done so earlier, fewer deaths might have resulted. I would 100 per cent support any measures to do more for our front-line police to make our streets safer. I support the bill as a step in the right direction, but I have some concern about when the driver becomes aware of the police pursuit. I also seek more details on how our laws are stronger than the Queensland laws because it has relevance to my electorate of Tweed. For the benefit of the Parliamentary Secretary, on a daily basis 50,000 Queensland vehicles come across the border, so it is a major issue.
Mr ALAN ASHTON (East Hills) [5.46 p.m.]: I support the Crimes Amendment (Police Pursuits) Bill 2010. I was in Europe in a private capacity when the tragic event that has brought this bill before the Parliament happened. I appreciate the tragedy and I pass on my respects and that of my family to the Sassine family on the death of their young daughter, Skye. Even though I was not in the country I kept abreast of the news. All members are aware that a bill such as this has been coming for a while—whether from this Government, another party in decades to come or as a result of the Queensland legislation. As the 125 per cent member for East Hills—and like the 100 per cent member for Tweed—I know that the community is sickened by people who believe that just because they own a quick little Subaru they have the right to outrun police in chases.
The New South Wales Government has tried hard to prevent these tragedies. For example, it introduced road spikes to prevent people from escaping during police pursuits. That measure has caused the death of police. The Government has tried many ways to try to prevent people from entering a car and acting as wheelmen to do the driving in the old days of wise guys and gangsters. I did not think I would act in the role of a censor. However, unfortunately, this type of driving is promoted on television and in movies. Some people feel they can drive on roads and over bridges in this manner. I do not seek to lower the tone of this debate, but people watch movies such as the French Connection and the Blues Brothers, but real life should not be like that. People can kill someone backing out of their garage or by putting their car in the wrong gear in the car park of Myer or David Jones. For example, the driver or others can be killed if the car rolls off the eighth level of the car park and ends up on the ground floor.
When I am driving at the legal 110 kilometres per hour I am sickened every time I am overtaken by people on their red or green P-plates—some go flying past me. I know the Government has taken action with respect to such behaviour. Stronger action could be taken but we cannot put older heads on young people and we cannot pretend that we were not prone to such behaviour in our youth. However, this case is different. It will be an offence for people driving at a dangerous speed to fail to acknowledge when police are trying to pull them over—to arrest them, to carry out a breath test or to ascertain whether an offence has been committed.
Opposition members have questioned these measures and this bill might be amended in the upper House but I do not have a problem with that. The Government does not have the numbers in the upper House, so not all government legislation will go through unamended. However, if legislation is amended in the upper House those amendments will still have to be accepted in this Chamber. If an amendment has extra merit, or it is something that the Government did not consider or factor in, I do not believe that would be a problem. Unlike the Federal Senate over the past two years, which is always recalcitrant and opposed to everything, this bill had a degree of cooperation in the upper House. The Opposition shadow spokesperson, the Hon. Mike Gallacher, has been shadow spokesperson in this area forever, which I understand is his calling as he is a former police officer. Good luck to him if he played a role with police Minister Michael Daley in introducing this legislation.
Getting down to technicalities, sometimes people disagree on the definition of the regulations to be applied in any legislation. Most critically, it is an indictable offence for failing to stop a vehicle and for driving a vehicle recklessly at a speed or in a manner dangerous to others after becoming aware that police officers are in pursuit of the vehicle. People often make the excuse that they did not think they were being pursued by a police officer. Members would be aware of the stories of people obtaining a siren and pretending to be police officers, but that happens only once every five years, or once every decade. People who are being chased by an unmarked police car often do not know what to do. Those who have committed an offence and have something stolen in the back of their car, or have been travelling at 180 kilometres per hour—or at 230 kilometres per hour, the speed at which some young people have been caught travelling on the F6 or the M5 at night—know what they have done.
Horrendous accidents have occurred on the M5 in my electorate when people have driven 80 kilometres or 90 kilometres over the speed limit. On Milperra Road, where there is a great deal of traffic, cars travelling at 150 kilometres or 160 kilometres per hour have crashed. I am sure that all members would be aware of those sorts of incidents. One of the provisions in this legislation is that if the driver of a vehicle knows that the police are in pursuit of his or her vehicle, he or she is required to stop. How would people know whether or not police were pursuing their vehicle? In order to establish this as a new offence the prosecution must prove that a person knew that police were in pursuit of his or her vehicle. Some of the excuses include statements such as, "I thought I was being chased by crooks," or, "I believed that I was innocent," or, "I was really drunk and I did not know what I was doing," or, "I am not used to this powerful car, which is much more powerful than the normal Subaru Impreza WRX." Those excuses will no longer work. It is the job of good lawyers—and I am looking at two who are present in the Chamber—
Mr Peter Debnam: There is no such thing.
Mr ALAN ASHTON: The former Leader of the Opposition is entitled to his opinion. It is the job of good lawyers to find out whether a person genuinely knew that police were in pursuit. When police sirens wail, as they do, and the lights are flashing it is a fair requirement that someone is expected to stop. If a driver does not stop his or her vehicle and drove recklessly or at a speed or in a manner dangerous to others, he or she will be in big trouble. Let me refer briefly to the penalties that will be issued for such an offence. These elements appropriately capture the type of criminal behaviour targeted by the new offence. Members would already be aware that strict penalties apply to anyone fleeing a scene after occasioning a death. The new offence does not require someone to cause death or injury; it requires him or her to flee from police.
This provision might make a few more people think. It is not all right for them to leave the scene of an accident, to kill someone, or to kill or injure a passenger in a car. However, if they flee from police and they are caught—and eventually they will be caught—they face the prospect of being sentenced. The prosecution does not have to prove that someone was driving recklessly before a pursuit commenced if it can prove that person was driving recklessly while he or she knew that police were in pursuit. A driver who does not speed when leaving the scene of a robbery but decides to speed flat out when police begin a chase would be charged with an offence if he or she is fleeing from police.
One of the issues that will need to be established is whether or not a driver knew that police were in pursuit of his or her vehicle and that he or she was required to stop. This should not be an onerous task for the prosecution where it is clear from surrounding circumstances that a pursuit had started. Members would be aware that police vehicles now have video and every police vehicle is equipped to do random breath testing. Many members would have inspected police vehicles and would be aware that they have many facilities. We all know what police vehicles are capable of and it should be pretty clear on their video cameras whether or not a car is speeding away. Earlier other members mentioned that first offenders will face a maximum penalty of three years imprisonment and that a maximum of five years imprisonment will apply to offenders who commit a second or subsequent offence.
People fleeing from police will receive a jail sentence of five years for initiating a police chase, for thinking that it is a bit of fun, and for getting caught. They could end up getting a jail sentence of five years for a second offence, which I think is reasonable. As we get older our views might become more conservative. Our roads are more choked than ever and there are more expressways. The other day I drove to Newcastle and saw the work being done on the Pacific Highway. Some young people—and some older people—who have fast cars want to put their foot down on our highways. In my youth I owned a Volkswagen, which was not very fast but it went forever.
Mr Wayne Merton: Superbugs.
Mr ALAN ASHTON: I had a superbug and a white 1200A, but I am digressing. In Germany people can travel at whatever speed they wish to travel on the autobahns, which is great fun. That is why those autobahns were built. I have never done that but that is not the way in which we drive on roads in Australia. Deaths and injuries on our roads were reducing, but last year there was a horrendous spike in casualties on our roads, and no-one knows why. About 20 years ago there were 1,000 deaths and injuries on our roads each year, and gradually that was reduced to about 400 each year. Members on both sides of the Chamber supported legislation that introduced random breath testing to make people more responsible and also to introduce seat belts, which made car travel safer. No-one knows why there was a spike in the number of deaths and injuries on our roads last year.
These penalties will be augmented by robust licence disqualification provisions, and we have to follow up on that. I do not like listening to shock jocks or reading certain newspapers, but six weeks ago I read about a young fellow aged 15 in my electorate who got into trouble at school. He went home, allegedly stole his mother's car, drove to school to pick up his sister, and later in an accident killed his best friend, who was with him in the car. No-one knows what to do about circumstances such as that. Are we trying to put old heads on young shoulders? All people, both young and old, who are driving cars should heed an age-old expression and take time to smell the roses. If people drive a little more slowly they might reach their destinations a little later, but they will get there without breaking the law. If they speed and they think that they can run from police they will get caught and receive a three-year jail sentence. What happens to them in jail will make them think about many other things in life. If they commit a second or a third offence they will go to jail for five years. I commend the bill to the House.
Mr MALCOLM KERR (Cronulla) [5.59 p.m.]: What we have seen today has been a police pursuit: the police have pursued the Premier, the member for Miranda, and every member of the Government to make amendments to the legislation. But the Government, the Premier and the member for Miranda have been deaf to police warnings. Those warnings have been very explicit. The Police Association—in other words, the police union, part of the Labor movement—said:
Police are calling on the Premier to intervene and stop the watering down of Skye's law when the legislation is considered in State Parliament today.
The Police Association of NSW said the law as it stands is unworkable and means lives will continue to be put at risk by reckless drivers trying to evade police.
Police warnings could not be any clearer than that. During question time today the Premier went to great pains to say how much consultation had taken place on the bill. Yet, had she consulted with the Police Association? Had the member for Miranda consulted with the Police Association? They are the ones on the front line. They are the ones that are at risk. They are the ones who will not be served by this law, which is simply another case of lights, camera, no action. I say that because of what the police—who are in the position to know—have said. The Police Association's words do not end there. It says:
Under the legislation to be tabled today the onus will be placed on police to prove that a driver was not only driving recklessly or at a dangerous speed but also that the driver knew that they were required by police to stop.
How can police prove this knowledge? It's just ridiculous. The onus of proof needs to lie with the person putting the lives of police and the public in danger.
The member for East Hills said that the member for Miranda is a good lawyer. It is a matter of record that the member for Miranda used to appear for people who were charged by police. I note that the member for East Hills is a free man. He may be talking from experience; I do not know. Let us assume the member for East Hills is right: the member for Miranda is a good lawyer. Of course, he would grab this defence—quicker than Fred Astaire could grab a dancing partner, I might add—and use it in court.
Mr Barry Collier: The St George and Sutherland Shire Leader wouldn't publish it.
Mr MALCOLM KERR: The member for Miranda is quite right. There was a reference to dancing in correspondence with the local newspaper. Maybe the member for Miranda was taught dancing in a hurry, like Arthur Murray. We will leave that for another day, because this is a very serious issue. I will conclude my brief remarks by saying what unionists have told the Government:
It's up to the Premier now to step in and make sure Skye's law is more than just a token PR stunt, to ensure it will deter reckless drivers from evading police and putting lives at risk.
Mr PETER DEBNAM (Vaucluse) [6.02 p.m.]: The member for East Hills said that a bill like this has been coming for some time. The fact is that a bill like this has been coming since cars went on the road and police chased them. Indeed, this Parliament has talked about this bill for 16 years. There are members in this House—I am not sure about the Labor members, but certainly Coalition members—who were on the Staysafe committee in 1994. When I came to this Parliament 16 years ago, the Staysafe committee report was one of the first reports I took notice of. Subsequently, in April 1995, the Government changed. For 15 years we have been pleading with the Labor Party to put in place the recommendations of that Staysafe committee from 1994. So, when the member for East Hills says a bill like this has been coming for some time, yes, it has—since cars were invented. But specifically, this offence has been coming since that Staysafe committee report of 1994 and we have been calling on this Government to act since April 1995.
Mike Gallagher and I have been shadow police Ministers a number of times over those years. I do not know how many times I have spoken about this issue, both in the House and publicly. What I simply do not understand, and will never understand—my current intention is to leave this Parliament in a year's time at the election—why Labor refused to take action on every single law and order issue over the last 15 years. I have not gone back over those years and counted the number of people who have died as a result of police pursuits, but it is a few.
Every six months, or perhaps every 12 months, the Sydney Morning Herald used to publish an article on police pursuits. For whatever reason, I had the feeling that the journalists at the Sydney Morning Herald were only interested in stopping police carry out the pursuits. I think every member of this place is responsible enough to know that you cannot stop police carrying out those pursuits. Police are in the community as our agents, to protect us. The people who are running away from police are not law-abiding citizens; they are not your average Joe. The member for East Hills spoke as though he had been talking to some of them, whom he knew. I do not know anybody who has outrun police.
I think all of us have been on the road and had a police car behind us, with the siren going and the lights flashing. You have that horrible feeling of dread, and you think, "Are they going to pull me over?" But they go straight past you; they are chasing someone else. Anyone driving a car with a police car screaming behind them is in no doubt that the police are pursuing someone—and hopefully it is not you. Let us be serious as a Parliament and put out there the deterrent we have all been talking about since 1994. The one qualification on that is that the police are not happy with this bill. I hope the gentlemen sitting in the Speaker's Gallery are not from the police ministry. I simply make the point that every single bill to do with policing that has come before this House since April 1995 has been a dog's breakfast. We have talked about the problems with the legislation; we have highlighted that it is often hijacked by a philosophical band in the Attorney General's Department—
Mr Barry Collier: Point of order: I ask that the member for Vaucluse be brought back to the leave of the bill. This is about police pursuits; it is not about a litany of legislation that has been introduced by this Government, as referred to by the member, since April 1995. I ask you to bring the member back to the leave of the bill, which is the Crimes Amendment (Police Pursuits) Bill 2010.
The DEPUTY-SPEAKER: Order! The member for Vaucluse is speaking to the bill.
Mr PETER DEBNAM: The bill is about putting in place something the police have been calling for for decades. Most importantly, as the member for Cronulla said, what we have seen today is another police pursuit. The police have asked the Government to put in place the amendment they have put forward to it. The Opposition supports that. I implore the Government, after 15 years and God knows how many deaths because the Government has failed to put the deterrent in place, to do the right thing and put in place the amendment the police are asking for, and to do it quickly. We can support it; we can get this legislation through the House. While the Government is doing that, I ask it to explain to us why it has watered down every single law and order issue in 15 years.
As I said, I know there is a problem in the Attorney General's Department, and it has been there for 15 years, and I know there is a problem with the police ministry; it has been there for 15 years. But there are a lot of members of Parliament who have the expertise to fix these bills and not to water them down, and yet the Government has watered down every single one of them. For once in its life, in the final year of this government, I implore it to put in place a strong deterrent that sends a message—remember, these are not law-abiding citizens—so we can get it right, get it done quickly, and get the message out to the community.
Mr GEOFF CORRIGAN (Camden) [6.09 p.m.]: Skye Sassine's parents are my constituents and for that reason I feel I should make a brief contribution to this debate. I thank the Police Association for drawing its concerns regarding the legislation to our attention, and I have every confidence that the Attorney General will take notice of its concerns. Referring to the words of the member for Vaucluse, if these concerns have been around for decades, he certainly had an opportunity in the Greiner Government to address them. As chairman of the Staysafe committee, I certainly will read the 1994 report.
It was a tragedy when Skye Sassine was killed in that police pursuit. I do not know whether this law will apply to those involved in that pursuit because I am advised that other offences and penalties apply to police pursuits, particularly when someone is seriously injured or killed. The office of the Attorney General advises me that offenders who flee from police already face a range of offences that vary in severity depending on the manner of driving, the level of danger posed to the public or the level of injury to others. When a police pursuit results in another person being seriously injured or killed offenders may be charged with aggravated dangerous driving occasioning grievous bodily harm or death and face maximum penalties of 11 years and 14 years imprisonment respectively.
These offences are the subject of a guideline judgement, which holds that a custodial sentence usually will be appropriate for the ordinary offender with no prior convictions who causes death or serious injury to a person. Where circumstances of aggravation exist, such as evading police or ignoring warnings, the guideline calls for the imposition of a lengthy sentence. In some cases a driver who kills another person in the course of a police pursuit could also face a charge of manslaughter or murder. These offences carry maximum penalties of 25 years and life respectively. At the lower end of the scale, failing to stop a vehicle when directed to do so by police carries a maximum penalty of one year, while negligent driving offences carry penalties of up to two years.
The new offence in this bill fills an important gap between those lower-level offences and the more serious acts resulting in serious injury or death. As Opposition members have done, I too ask that the Attorney General note the concerns raised by the Police Association. The Government consulted the Opposition, the Police Association and everyone involved at the time prior to introducing this bill. The Police Association now has raised the latest concern about the wording in relation to a driver knowing he or she is being pursued. The Attorney General will deal with that at the appropriate time.
Mr WAYNE MERTON (Baulkham Hills) [6.11 p.m.]: The Opposition does not oppose the principles embodied in the Crimes Amendment (Police Pursuits) Bill 2010. The bill was introduced, after consultation with the Law Society and the Police Association, to address concerns by creating an indictable offence punishable by a three- to five-year jail sentence for failing to stop a vehicle and driving a vehicle recklessly or at a speed or in a manner dangerous to others after becoming aware that police officers are in pursuit of the vehicle. This legislation was prompted by the tragic death on New Year's Eve 2009 of Skye Sassine, a young person who was killed when her family's car was hit by a vehicle driven by two alleged bank robbers attempting to evade police on the F5 at Ingleburn. The resultant community outcry led to calls for tougher penalties for those engaged in unlawful police pursuits. The Opposition certainly supports the principle behind this legislation. The Opposition is committed to road safety and to passing legislation to prevent or deter people from being involved in police pursuits. This legislation is basic in its outline. New section 51B of the Crimes Act states:
(1) The driver of a vehicle:
(a) who knows that police officers are in pursuit of the vehicle and that the driver is required to stop the vehicle, and
(b) who does not stop the vehicle, and
(c) who then drives the vehicle recklessly or at a speed or in a manner dangerous to others,
is guilty of an offence.
(a) in the case of a first offence—imprisonment for 3 years, or
(b) in the case of an offence on a second or subsequent occasion—imprisonment for 5 years.
The Opposition and the Police Association are concerned about the words contained in subclause (1) (a) "that the driver knows that police officers are in pursuit of the vehicle and that the driver is required to stop the vehicle". For a prosecution to successfully obtain a conviction it will be necessary for the Crown to prove beyond reasonable doubt that the driver of the vehicle knows a police officer is in pursuit of the vehicle and that the driver is required to stop the vehicle. In many cases proving this may not be as easy as it sounds. As other members have said, many drivers could give a multitude of reasons in their defence: they were not aware, their radio was on or they were distracted. If this legislation is passed it will be evident in subsequent prosecutions that drivers will maintain they were not aware that the police were in pursuit of their vehicle and that they were required to stop the vehicle.
The two distinct aspects are that the Crown must prove, first, the driver knew the police were in pursuit and, second, that he or she was required to stop the vehicle. The Police Association quite correctly states that under this legislation police will have the onus of proving a driver not only was driving recklessly or at dangerous speed but also new that he or she was required by police to stop. How police can prove this knowledge is ridiculous. This is the question the Police Association asked. The onus of proof must lie with the person putting in danger the lives of police and the public. As the bill stands the Crown must prove beyond reasonable doubt that the driver knew that the police officers were in pursuit of their vehicle.
Unless the driver admits to having that knowledge this proposition could be difficult to prove, but under the legislation as proposed it is a condition precedent to obtaining a conviction. The Police Association has stated clearly that if the legislation passes as it stands police will be unable to enforce it. The bill is quite clear on this aspect of driver knowledge: it speaks of an actual knowledge of a driver "who knows that police officers are in pursuit of the vehicle". It does not say the driver "ought to have known" or "reasonably ought to have known" or "should have known". The bill states quite specifically that the driver "knows that police officers are in pursuit of the vehicle". I interpret that to mean that the driver must have an actual knowledge. It would not be sufficient to obtain a conviction beyond reasonable doubt to prove that someone should have, ought to have, could have or may have known that police officers are in pursuit of the vehicle. The bill states emphatically that the driver must have actual knowledge of that pursuit. Short of an admission by the driver, in some circumstances it may be difficult to obtain a conviction.
We all know that lawyers are persuasive, particularly experienced criminal advocates—that is their job and many do it well. A driver facing a charge of this nature will have it dealt with before a jury. In many cases when most people think the case is open and shut—a watertight case as far as the Crown is concerned—a skilful and forceful advocate could introduce an element of doubt to persuade a jury to conclude that the driver's knowledge had not been proved to the necessary criminal onus of proof. The shadow Attorney General foreshadowed an amendment to delete the concept of the driver knowing that police officers are in pursuit of their vehicle and that he or she is required to stop and instead state that the onus of proving knowledge of the pursuit or that the vehicle is required to stop is not a factor the police have to prove. Rather, it is for the driver to prove that he or she was not aware of the police pursuit on the balance of probabilities. It is for the offender to establish that he or she had no knowledge that the police were in pursuit of his or her vehicle.
In conclusion, I repeat the remarks made by the Police Association of New South Wales that in reality if this legislation is passed as it stands the police will be unable to enforce it. The association also asked the Premier to step in to ensure that Skye's law is more than a token public relations stunt to stop reckless drivers from evading police and putting lives at risks. I am certain that everyone in this Chamber has a commitment to saving lives. The Government should look at the reality of the situation. Do not let those who are obviously on the path of mischief, driving recklessly and putting the lives of police officers and members of the public at risk, escape on a technicality. People have had a gutful of accused people walking away from offences on a technicality. We have the opportunity to rectify the legislation. We do not want to come back in 12 months time after a number of people have walked free from court because the Crown has been unable to prove beyond a reasonable doubt that a driver knew police were in pursuit of his vehicle.
Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [6.22 p.m.], in reply: I thank the member for Epping, the member for Maitland, the member for Pittwater, the Leader of the Opposition, the member for Smithfield, the member for Wyong, the member for Clarence, the member for Lakemba, the member for Ryde, the member for Gosford, the member for Tweed, the member for East Hills, the member for Cronulla, the member for Vaucluse, the member for Camden, and the member for Baulkham Hills for their contributions to this debate. I note that the member for Baulkham Hills has said that the Opposition does not oppose the bill, at least in this place—he is nodding in agreement.
It is important to repeat the elements of the new offence, which must be approved by the prosecution: first, the driver of a vehicle knew that police were in pursuit of the vehicle and that he or she was required to stop; secondly, the driver did not stop the vehicle; and thirdly, the driver then drove recklessly or at a speed or in a manner dangerous to others. Those elements properly capture the type of criminal behaviour targeted by the new offence—that is, if a person knows the police are pursuing him or her and that he or she is required to pull over, he or she will face a charge under the new offence if he or she fails to stop and drives in a reckless manner or at a speed or in a manner dangerous to the public. The prosecution does not have to prove that the driver was driving recklessly before the pursuit commenced. It is enough to prove that the driver drove recklessly whilst he or she knew the police were in pursuit.
Whilst it will need to be established that the driver knew that police were in pursuit of his vehicle, and that the driver was required to stop, this should not be too onerous for the prosecution in cases where it is clear from the surrounding circumstances. The member for Vaucluse spoke about police vehicles with flashing sirens and lights—it is quite obvious in such a case that a driver would know the police wanted him to stop—which may lead to a police chase and which may also lead offenders to take deliberate steps to avoid compliance or evade apprehension. But this can also be looked at another way.
Not only are police pursuing a person but in the course of so doing they are also gathering evidence. When an offender is arrested the police eventually return to a police station to make a statement as to the surrounding circumstances. Unless there is a plea of guilty, the police will eventually give evidence in court as to the surrounding circumstances. For example, there may be an admission, the lights, the siren, the sudden burst of speed, the independent witness on the side of the road who observes the police pulling alongside the vehicle, the eye contact between the police and the driver of the car, the evidence of the alleged offence committed shortly before the commencement of the pursuit, evidence that the driver was in a stolen car, and the possible use of a video—video cameras are installed in police cars these days—which may be admissible and used against the alleged offender. There are plenty of circumstances to allow a well-qualified and competent prosecutor to establish a case at prima facie level and beyond to a jury properly instructed to find knowledge of the offence and knowledge that the police were in pursuit and the driver was required to stop.
Equally, as significant penalties apply to the new offence, the requirement of knowledge is an important ingredient so as not to capture inadvertent or otherwise unintentional conduct. Of course, even in such cases the driver would still be liable to prosecution for reckless or dangerous driving. The member for Epping, the shadow Attorney General, and subsequent Opposition members commented that the Police Association of New South Wales has sought to change this legislation. The association wants to reverse the onus of proof in relation to the knowledge requirements of the offence. It is important to note that officers of the New South Wales Police Force were consulted on this bill during its drafting, and while concerns were raised and debated on other aspects there was unanimous support from police for the inclusion of the element of knowledge of the pursuit as a necessary aspect of the offence. The member for Epping pointed out that this was on advice from the relevant traffic police and the legal department of the New South Wales Police Force. The member for Epping also conceded that there has been no reference to the Parliamentary Counsel at this point in time.
The requirement of knowledge is an essential ingredient of the proposed offence so as not to capture inadvertent or unintentional conduct. As noted in the agreement in principle speech, the establishment of knowledge in relation to both the pursuit and the requirement to stop should not be onerous in cases where it is clear from the surrounding circumstances—and I have alluded to some of those. The requirement for the prosecution to establish that the offender had knowledge of these matters is an integral part of the offence. It is inappropriate to place an evidential burden on the defendant in relation to a matter that is central to the question of culpability, particularly given the prescribed penalties for the offence.
Both the Leader of the Opposition and the member for Tweed—who constantly reminds me of cross-border issues whether I like it or not—raised the Queensland and South Australian legislation. They pointed to that legislation as being the guiding light for legislation to be introduced in this State. I point out to those members that both the Queensland and South Australian pursuit offences are more difficult to prove than the proposed New South Wales offence. That is because both the Queensland and South Australian offences require the prosecution to prove an intention on the part of the driver to evade police. By contrast, the New South Wales offence does not require intention to be proven, merely that the offender knew that he or she was being pursued and was required to stop. Furthermore, the Queensland offence is not a reverse onus offence and requires proof of the issue of a direction to stop, which is regarded as raising even more difficulties for the prosecution especially in cases in which a pursuing police vehicle may be some distance behind the offending vehicle. The Queensland defence is considered to be unnecessarily lengthy and unnecessarily complex.
The requirement of knowledge as an element of a criminal offence is not new to criminal law. The Crimes Act contains many such offences, each of which relies on surrounding circumstances to assist in establishing the requisite knowledge. Examples pertaining to the Crimes Act include participating in a criminal group, section 93T; receiving stolen property, section 188; placing dangerous articles on board an aircraft or vessel, section 207; harbouring an escapee, section 310G; and membership of a terrorist organisation. Given the significant penalties that attach to the new offence established by the legislation, it would set a dangerous precedent to reverse the onus in relation to that integral aspect.
Reversing the onus of proof is inconsistent with the presumption of innocence. While that is not an absolute right, the placing of an evidential burden on the defendant is not justified when the matter in question is central to the question of culpability and when the offence carries significant penalties, which in this case are three years imprisonment for a first offence and five years imprisonment for a second offence. The Government makes no bones about the fact that we are dealing with an indictable offence. The offence may well be dealt with as a table 2 offence in the Local Court, but the offence is indictable and carries with it a penalty of imprisonment for three years for a first offence and five years imprisonment for a second offence.
It is important to recognise that other offences and penalties apply to police pursuits, particularly in circumstances in which someone is seriously injured or killed. Those who flee from police already face a range of offences that vary in severity, depending upon the manner of driving and the level of danger posed to the public or the level of injury to others. When a police pursuit results in another person becoming seriously injured or killed, offenders may be charged with the offence of aggravated dangerous driving occasioning grievous bodily harm or death, and may face maximum penalties of 11 and 14 years imprisonment respectively. These offences are the subject of a guideline judgement that holds that a custodial sentence usually will be appropriate for an ordinary offender with no prior convictions who causes death or serious injury to a person. When circumstances of aggravation exist, such as evading police or ignoring warnings, the guideline calls for the imposition of even lengthier sentences.
In some cases, a driver who kills another person in the course of a police pursuit also could face a charge of manslaughter or murder. These offences carry maximum penalties of up to 25 years and life imprisonment respectively. According to my recollection, there is also an offence under section 33B of the Crimes Act relating to the use of an instrument, such as a car, to avoid apprehension. I note that the shadow Attorney General nods in agreement with that proposition. At the lower end of the scale, failing to stop the vehicle when directed to do so by police carries a maximum penalty of one year, while negligent driving offences carry penalties of up to two years. The new offence in this bill fills an important gap between lower level offences and more serious acts that result in serious injury or death.
In relation to penalties of three years imprisonment and five years imprisonment, it is important to note that they are augmented by robust licence disqualification provisions, including automatic disqualification of three years for a first offence and five years if it is the offender's second offence or subsequent major traffic offence within a five-year period. The periods may be reduced by a court to a minimum of 12 months and two years respectively, or increased to such period as the court sees fit. Furthermore the offence will form part of the habitual traffic offenders scheme, which exposes serious repeat offenders to significant periods of disqualification, up to and including disqualification for life.
The member for Pittwater mentioned issues such as music being too loud or sun shining through a car window as possible defences. With all due respect to the member for Pittwater, the onus of proof rests on the prosecution throughout. If the prosecution raises the issue at least in a prima facie case, it is open to counsel for the accused to call the accused to give evidence in the witness box of all matters that may have affected him or her, and all matters that may have affected his or her actual knowledge. In those circumstances, the judge may instruct the jury to take those matters into account during deliberation, and the jury weighs those matters in determining whether they constitute a reasonable doubt. There is provision for persons charged with these offences to present evidence in an attempt to create a doubt. It is not a strict liability offence, as I understand it.
In response to the member for Pittwater's reference to the issue of police pursuits, let me say that the New South Wales Police Force takes the conduct of pursuits extremely seriously and continually monitors its pursuit management practices. The safe driving policy was comprehensively reviewed by NSW Police in 2007-08 following a review by the Ombudsman into compliance with existing policy in the context of police pursuits. The majority of the Ombudsman's recommendations were supported by police and adopted into the revised policy. The new safe driving policy was issued in August 2008.
It is important to note that a key feature of the policy is that the pursuits are considered to be a last resort. They will be used only when the gravity and seriousness of the circumstances require such action, and there are no other immediate means of responding. Officers may engage in a pursuit only when there is reasonable cause to believe that the person being pursued has committed, or has attempted to commit, an offence and is attempting to evade police. As I indicated earlier in my contribution to the debate, the police not only are chasing an alleged offender but also are gathering evidence in the process.
The member for Pittwater expressed concern also about leaving matters to be determined by the court. Quite frankly, his statement was unexpected, considering that the member for Pittwater is learned in the law. For the benefit of other members, I point out that courts will interpret legislation and apply that to the circumstances of the case before the court. That leads to the development of a body of knowledge referred to as precedent for the guidance of other legal practitioners and police in subsequent cases. The Leader of the Opposition expressed the Coalition's support for the legislation in the broad. He hinted at a possible amendment of the legislation in the other place.
The Leader of the Opposition and the member for Ryde referred to the legislation needing to address five points: one was the creation of an indictable offence, and the legislation does that; the second was penalty and periods of imprisonment of three years for the first offence and five years for the second offence, and the legislation does that; confiscation is a much more difficult issue; suspension of licence can be included as a penalty; and, as part of the process of public consultation, the public will be aware of changes to the law. I have no doubt that those issues will be dealt with fairly and adequately. I should point out that the suspension of licences is a rather difficult proposition.
The application of vehicle confiscation provisions to the new offence could be regarded as being inappropriate. Many offences under the new provisions relate to the involvement of stolen vehicles—for example, an armed robbery getaway scenario. In such cases it obviously would be counterproductive to confiscate a vehicle, particularly one belonging to an innocent third party. Current vehicle confiscation provisions specifically target car hoon offences in which a particular vehicle is a prominent feature of the offence. Car hoon offences are unique in that often they are part of a repeated pattern of behaviour and often involve vehicles that have been specifically modified to engage in the offending behaviour, such as street racing. That is why the publicised theme of car hoon reforms was to hit offenders where it hurts. In contrast to that, the majority of police pursuits involve the use of vehicles that is incidental to the criminality of an offence of participation in a police pursuit in a reckless manner or in a manner that presents a danger to others.
The Government considers that measures targeting an offender's ability to drive any motor vehicle—not just a particular vehicle used in the commission of the offence—through custody, the application of robust automatic disqualification provisions and habitual traffic offender declarations are more effective. The Leader of the Opposition referred to what may be described as the O. J. Simpson defence. My recollection is that O. J. Simpson drove along a freeway pursued by a plethora of police cars. I note that the shadow Attorney General is nodding in agreement. No properly instructed jury and no juror in his or her right mind who saw that chase on television would draw the conclusion that O. J. Simpson did not know the police were after him.
The member for Clarence referred to this legislation as flawed and the element of knowledge as a get out of jail free card, with offenders saying that they were on the phone to their girlfriend or had the radio up loud. Again, my response is that the onus of proof is on the Crown. As I have said, once a prima facie case is made before a judge sitting alone or a jury, the accused must provide evidence that may raise doubt in the minds of the jurors or the mind of the judge. The member for Ryde spoke about actual knowledge and constructive knowledge and referred to a number of English cases. He went on to compare changes to the Copyright Act. I point out to the member for Ryde that the Copyright Act is Federal civil legislation. Here we are dealing with criminal legislation, which involves a different standard of proof. It also may involve a different onus of proof, depending on the wording of the Copyright Act.
The scholarship of the member for Ryde is acknowledged; he has put a great deal of effort into his work. However, I question the relevance of the copyright cases. He identified the serious questions of criminal law, and in particular the interpretation and knowledge requirements in terms of "know" or "ought to have known". In fact, given that the amendment to be moved by the Opposition in the other place will remove the knowledge requirement altogether, it seems that variations by the Opposition may be against the Opposition's policy. The member for Cronulla gave an off-the-cuff speech—I cannot think of an appropriate word to describe his contribution.
Mr Phillip Costa: There is a word there somewhere
Mr BARRY COLLIER: Yes, there is—somewhere.
ASSISTANT-SPEAKER (Mr Grant McBride): "Scatterlogical"?
Mr BARRY COLLIER: "Scatterlogical", perhaps. He took his chances to have a go at the member for Miranda, as he usually does. He questioned how police can prove knowledge. The member for Cronulla well knows the answer to that. I have covered all the possibilities, depending on the circumstances of the event. I will respond to a comment by the member for Cronulla about my background. In my first job in criminal law I worked with the Director of Public Prosecutions in the District Court section. I also worked in the Court of Criminal Appeal section. The member for Vaucluse asked why this offence was not introduced back in 1994 when recommended by the Staysafe committee. An offence covering the same ground as that recommended by the Staysafe committee was introduced by the Government in 1998. The offence of failing to stop a vehicle when directed by police was originally introduced into the Police Powers (Vehicles) Act 1998 and is now contained in the Law Enforcement (Powers and Responsibilities) Act 2002. The offence in relation to which dangerous driving or other danger to the public need not be proven carries a maximum penalty of 12 months imprisonment.
Other police pursuit initiatives introduced since the Staysafe committee's report include the use of police in-car video to monitor pursuits and tyre deflation devices known as road spikes. In addition, the Government has bolstered the offences of dangerous driving occasioning death and grievous bodily harm by adding to the prescribed features of aggravation and expanding the definition of "impact" under the legislation. The Government introduced legislation in 2001 to ensure the continued use and effectiveness of the dangerous driving guideline judgement issued by the Court of Criminal Appeal. It cannot be suggested that the Government has sat on its hands in relation to this important area of the law and the provision of appropriate offences and necessary law enforcement powers.
The bill bolsters the range of offences already available in New South Wales to deal with offenders who participate in police pursuits. The penalties attaching to the new offence reflect the seriousness with which the Government and, indeed, the community as a whole regard the actions of those who put other road users at risk as a result of engaging in this senseless behaviour. The strong message sent by this bill will serve to remind all drivers of the significant consequences of this conduct, not just the legal consequences but the immeasurable and very sad personal costs as well. On 31 December last year an innocent child was lost as a result of a terrible tragedy. Although that case is currently the subject of legal proceedings, it shone the spotlight on this type of behaviour. While this bill can do nothing to reverse the events of that fateful night, it is hoped that it will help play a role in sparing others from the insurmountable pain and anguish that the Sassine family must be enduring at this time. I commend the bill to the House.
Question—That this bill be now agreed to in principle—put and resolved in the affirmative.
Motion agreed to.
Bill agreed to in principle.
Passing of the Bill
Bill declared passed and transmitted to the Legislative Council with a message seeking its concurrence in the bill.