NATIONAL PARKS AND WILDLIFE ACT 1972 - SECT 73A

NATIONAL PARKS AND WILDLIFE ACT 1972 - SECT 73A

73A—Liability of vehicle owners and expiation of certain offences

        (1)         In this section—

"owner", in relation to a vehicle, includes—

            (a)         a person registered or recorded as an owner of the vehicle under a law of this State or of the Commonwealth or another State or Territory of the Commonwealth; and

            (b)         a person to whom a trade plate, a permit or other authority has been issued under the Motor Vehicles Act 1959 or a similar law of the Commonwealth or another State or Territory of the Commonwealth, by virtue of which the vehicle is permitted to be driven on roads; and

            (c)         a person who has possession of the vehicle by virtue of the hire or bailment of the vehicle;

"prescribed offence" means an offence against a provision of this Act prescribed by regulation for the purposes of this definition;

"principal offender" means a person who has committed a prescribed offence.

        (2)         Without derogating from the liability of any other person, but subject to this section, if a vehicle is involved in a prescribed offence, the owner of the vehicle is guilty of an offence and liable to the same penalty as is prescribed for the principal offence and the expiation fee that is fixed for the principal offence applies in relation to an offence against this section.

        (3)         Where there are two or more owners of the same vehicle a prosecution for an offence against subsection (2) may be brought against one of the owners or against some or all of the owners jointly as co-defendants.

        (4)         The owner of a vehicle and the principal offender are not both liable through the operation of this section to be convicted of an offence arising out of the same circumstances, and consequently conviction of the owner exonerates the principal offender and conversely conviction of the principal offender exonerates the owner.

        (5)         An expiation notice or expiation reminder notice given under the Expiation of Offences Act 1996 to the owner of a vehicle for an alleged offence against this section involving the vehicle must be accompanied by a notice inviting the owner, if he or she was not the principal offender, to provide the person specified in the notice, within the period specified in the notice, with a statutory declaration—

            (a)         setting out the name and address of the principal offender; or

            (b)         if he or she had transferred ownership of the vehicle to another prior to the time of the alleged offence and, in the case of a motor vehicle defined by section 5(1) of the Road Traffic Act 1961 , has complied with the Motor Vehicles Act 1959 in respect of the transfer—setting out details of the transfer (including the name and address of the transferee).

        (6)         Before proceedings are commenced against the owner of a vehicle for an offence against this section involving the vehicle, the complainant must send the owner a notice—

            (a)         setting out particulars of the alleged prescribed offence; and

            (b)         inviting the owner, if he or she was not the principal offender, to provide the complainant, within 21 days of the date of the notice, with a statutory declaration setting out the matters referred to in subsection (5).

        (7)         Subsection (6) does not apply to—

            (a)         proceedings commenced where an owner has elected under the Expiation of Offences Act 1996 to be prosecuted for the offence; or

            (b)         proceedings commenced against an owner of a vehicle who has been named in a statutory declaration under this section as the principal offender.

        (8)         Where a person is found guilty of, or expiates, a prescribed offence or an offence against this section, neither that person nor any other person is liable to be found guilty of, or to expiate, an offence against this section or a prescribed offence in relation to the same incident.

        (9)         Subject to subsection (10), in proceedings against the owner of a vehicle for an offence against this section, it is a defence to prove—

            (a)         that, in consequence of some unlawful act, the vehicle was not in the possession or control of the owner at the time of the alleged prescribed offence; or

            (b)         that—

                  (i)         the driver or operator of the vehicle was not the principal offender or one of the principal offenders; and

                  (ii)         the owner does not know and cannot reasonably be expected to know the identity of the principal offender or of any one of the principal offenders; or

            (c)         that, at the time of the alleged prescribed offence, the vehicle was being used for a commercial purpose; or

            (d)         that the owner provided the complainant with a statutory declaration in accordance with an invitation under this section.

        (10)         The defence in subsection (9)(d) does not apply if it is proved that the owner made the declaration knowing it to be false in a material particular.

        (11)         If—

            (a)         an expiation notice is given to a person named as the alleged principal offender in a statutory declaration under this section; or

            (b)         proceedings are commenced against a person named as the alleged principal offender in such a statutory declaration,

the notice or summons, as the case may be, must be accompanied by a notice setting out particulars of the statutory declaration that named the person as the alleged principal offender.

        (12)         In proceedings against a person named in a statutory declaration under this section for the offence to which the declaration relates, it will be presumed, in the absence of proof to the contrary, that the person was the principal offender.

        (13)         In proceedings against the owner or the principal offender for an offence against this Act, an allegation in the complaint that a notice was given under this section on a specified day will be accepted as proof, in the absence of proof to the contrary, of the facts alleged.

        (14)         A vehicle will be taken to be involved in a prescribed offence for the purposes of subsection (2) if it was used in, or in connection with, the commission of the offence.

        (15)         Without limiting subsection (14), a vehicle will be taken to be used in connection with the commission of an offence if it is used to convey the principal offender or equipment, articles or other things used in the commission of the offence to the place where, or to the general area in which, the offence was committed.