CRIMES (DANGEROUS DRIVING) BILL 2004 Explanatory Memoranda
CRIMES (DANGEROUS DRIVING) BILL 2004
Crimes (Dangerous Driving) Bill
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EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the Act, which is to--
· amend the Crimes Act 1958 to--
· create an offence of dangerous driving causing
death or serious injury;
· provide that driving while fatigued may
constitute culpable driving causing death; and
· make a change to the elements of the offence of
handling stolen goods and deal with the
procedure on the trial of alternative counts of
theft and handling stolen goods;
· amend the Sentencing Act 1991 to provide for
mandatory driver licence cancellation and a period of
disqualification for the offence of dangerous driving
causing death or serious injury; and
· amend the Magistrates' Court Act 1989 to clarify that
certain arson offences are triable summarily.
Clause 2 provides that the Act will commence on the day after the day on
which it receives Royal Assent.
PART 2--AMENDMENT OF CRIMES ACT 1958
Clause 3 amends section 88(1) of the Crimes Act 1958 to remove the
words "otherwise than in the course of the stealing" from the
offence of handling stolen goods. This provision is intended to
address a problem with the current law identified by the
Victorian Court of Appeal in R v Marijancevic (2001) 3 VR 611.
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In that decision, the accused was charged with theft and handling
stolen goods. The Court of Appeal held that, even if the jury
were satisfied beyond reasonable doubt that the accused had
committed either theft or handling stolen goods, they must acquit
the accused of both charges if jurors could not agree as to which
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of the two offences had been committed.
By removing the words "otherwise than in the course of the
stealing", the jury does not need to be satisfied that the accused is
not a thief, when considering whether the accused is guilty of
handling stolen goods. As a result, it is less likely that jurors will
disagree about whether an accused is guilty of theft or guilty of
handling stolen goods.
Clause 4 inserts a new section 88A in the Crimes Act 1958 regarding
alternative counts of theft and handling stolen goods.
This provision is intended to complement the amendment to
section 88(1) in clause 3 of the Bill. The new section 88A
provides that, if the jury are satisfied beyond reasonable doubt
that the accused is either guilty of theft or guilty of handling
stolen goods but are unable to agree on which offence the
accused should be found guilty of, the jury must acquit the
accused of handling stolen goods and return a guilty verdict for
theft. In such circumstances, the accused would be liable to the
maximum penalty for theft, which is 10 years' imprisonment.
This provision is designed to address the problems identified
by the Victorian Court of Appeal in R v Marijancevic (2001)
3 VR 611.
Section 88A will only apply in cases where each individual juror
is satisfied beyond reasonable doubt that the accused is guilty of
theft or guilty of handling, but the jury as a whole is unable to
agree on which of the two offences has been committed.
Clause 5 amends section 318 of the Crimes Act 1958 to provide that
negligence within the meaning of section 318(2)(b) may be
established by proving that--
· a person drove a motor vehicle when fatigued to such an
extent that he or she knew, or ought to have known, that
there was an appreciable risk of him or her falling
asleep or of losing control of the vehicle; and
· by so driving the motor vehicle the person failed
unjustifiably and to a gross degree to observe the
standard of care which a reasonable person would have
observed in all the circumstances of the case.
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This section provides one way of establishing negligence but
does not limit the ways in which negligence may be established
under section 318(2)(b).
Clause 6 amends the Crimes Act 1958 to insert a new offence of
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dangerous driving causing death or serious injury in new
section 319. A person will be guilty of the new offence where
he or she drives a motor vehicle at a speed or in a manner that is
dangerous to the public having regard to all of circumstances of
the case and, by doing so, causes the death of, or serious injury
to, another person.
In this section "serious injury" has the meaning given by
section 15 of the Crimes Act 1958. Section 15 provides that
"serious injury" includes a combination of injuries.
The maximum penalty for this offence is level 6 imprisonment
(5 years). The offence will be triable summarily, pursuant to
section 53(1A) of the Magistrates' Court Act 1989.
Clause 7 amends the Crimes Act 1958 to provide for alternative verdicts
for certain charges in relation to driving. New section 422A
provides that, if on the trial of a person charged with negligently
causing serious injury or culpable driving causing death, the jury
are not satisfied that the accused is guilty of the offence charged,
but are satisfied that he or she is guilty of dangerous driving
causing death or serious injury, the jury may acquit the accused
of the offence charged and find him or her guilty of dangerous
driving causing death or serious injury.
Clause 8 inserts transitional provisions in the Crimes Act 1958 to provide
that--
· section 88 as amended by section 3 of the Crimes
(Dangerous Driving) Act 2004 applies only to offences
alleged to have been committed on or after the
commencement of the Act; and
· section 88A as inserted by section 4 of the Crimes
(Dangerous Driving) Act 2004 applies only to a trial
commenced on or after the commencement of the Act
regardless of when the offence is alleged to have been
committed (for these purposes a trial commences on
arraignment of the accused in accordance with
Subdivision (12) of Division 1 of Part III of the Crimes
Act 1958); and
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· section 319 (dangerous driving causing death or serious
injury) as inserted by section 6 of the Crimes
(Dangerous Driving) Act 2004 applies only to offences
alleged to have been committed on or after the
commencement of the Act.
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If an offence is alleged to have been committed between two
dates, one before and one after the commencement of the Act,
the offence is alleged to have been committed before that
commencement.
PART 3--AMENDMENT OF SENTENCING ACT 1991
Clause 9(1) amends section 89(1) of the Sentencing Act 1991 to provide that
when a person is found guilty of dangerous driving causing death
or serious injury, the court must, if the offender holds a driver
licence, cancel that licence and, whether or not an offender holds
a driver licence, disqualify him or her from obtaining one for a
period of at least 18 months.
Clause 9(2) amends section 89 of the Sentencing Act 1991 to provide that a
period of disqualification imposed pursuant to section 89(1) of
the Sentencing Act 1991 commences on the day that the order
imposing it is made, or on such other later day as the court
specifies in the order. The specific date of the commencement of
the disqualification period need not be specified. The period of
disqualification may be expressed to commence upon the
occurrence of some future event, for example, upon the offender
being first released from custody, whether on parole or on the
expiration of his or her sentence.
This power is in addition to the court's power to order that the
disqualification period commence on the day that it is made and
end after the occurrence of a particular event (for example,
18 months after the offender's release from custody, whether
on parole or on the expiration of his or her sentence).
PART 4--AMENDMENT OF MAGISTRATES' COURT ACT
1989
Clause 10 amends clause 35 of Schedule 4 to the Magistrates' Court Act
1989 to clarify that offences of destroying or damaging property
under section 197(1) and (3) of the Crimes Act 1958, including
those charged as arson, can be heard and determined in the
Magistrates' Court if the amount or value of the property alleged
to be destroyed or damaged does not in the judgment of the Court
exceed $25 000.
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