We must be properly informed about road safety laws to improve them
The verdict in a court case involving a driver charged over the tragic death of a pedestrian prompted community anger and a Premier’s promise to change legislation. The Law Society’s Justin Stewart-Rattray examines the fallout and legal implications.
When a tragedy occurs, it is human nature to try to make sense of the heart-shattering situation and seek some kind of atonement for the unimaginable pain it has caused.
When the court judgment was handed down to the Lamborghini driver whose car fatally struck 15-year-old Sophia Naismith, the narrative formed by much of the media was that the decision fell well short of the penance that the public expected the motorist should pay.
Unfortunately, some of the media coverage has misconstrued the trial process and inflamed public animosity towards the justice system.
The Law Society is not arguing against changes to the SA’s road safety regime. We believe some of the proposals outlined by the Premier may have merit and should be examined, but media coverage that does not accurately represent due legal process diminishes the public’s understanding of the justice system, when it should be aiming to do the opposite. The public deserve to be properly informed about how our legal system works.
In this article, I want to clarify some of the misconceptions that have been perpetuated, and talk about how we might engage in a process of road safety reform that this tragic case has triggered.
The role of the media
The majority of headlines and social media posts from various media outlets have claimed that the accused was found ‘not guilty’ of killing a teenager while driving a car.
Several media reports stated the accused was “acquitted” of causing a fatal accident, suggesting that the driver had escaped a guilty verdict.
The reality was that the driver had in fact pleaded guilty to aggravated driving without due care about 18 months ago. The DPP had not accepted this charge and instead pursued a death by dangerous driving charge. The judge, upon consideration of the evidence, determined that the driver’s actions could not meet the definition of dangerous driving, therefore the driver was found guilty of the lesser charge of aggravated driving without due care.
Some media outlets did include a detailed account of the evidence tendered by both parties in the trial, but this was all overshadowed by the provocative “Not Guilty” headlines and click-bait posts, leading to numerous social media users lamenting that the driver had “got away with it”.
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Whether the law should be reformed to deal more appropriately with poor driving behaviour is a legitimate issue for the media to examine, but when individual cases are misreported, sensationalised, or skewed in order to inflame public outrage, it undermines the very reason we have a system of open justice.
Another misconception the media coverage has perpetuated relates to the legal profession. Lawyers have borne the brunt of much vitriol for representing the accused. “Do his lawyers even have a conscience?” was a common question asked by social media users.
It is impossible not to be moved by this shocking tragedy. Lawyers and judges, many of whom are confronted by human misery on a daily basis, are acutely aware of the pain and grief experienced by victims’ loved ones. But it is absolutely essential in a democratic society that every person has a right to a fair trial. There is no way a society could be considered free if its citizens do not have this fundamental right.
In addition, while a lawyer has a duty to represent their client to the best of their ability, as officers of the court they have an even higher duty to the court. That is, they are bound to represent their client faithfully and must be able to stand by the integrity of the evidence they present. If a lawyer misleads the court to help their client’s case, they will be in contempt of court and risk serious disciplinary action, including being denied the privilege to practise law.
Judges have to apply the law without fear or favour. They don’t (and should not of course) have a say in which charges are made against an accused. In this case, the DPP argued for the higher charge with the higher penalty and the Judge found the criteria for satisfying this charge was not met in this case. The Society notes that there have been a number of occasions where the DPP has pursued dangerous driving charges which have resulted in years-long investigations and wait times for trials, only for the prosecution’s case to not succeed.
While the Society considers that, generally speaking, our penalty regime for road offences is proportionate, the Society would be open to discussing options that would reflect the seriousness of particular driving behaviours and lead to a reduction in failed dangerous driving prosecutions.
Do we need law reform?
Premier Peter Malinauskas has flagged proposed reforms to our road laws, and the Society is pleased that the Premier declared his intention to consult widely on the reforms.
The key reforms that the Premier mooted were:
- A specific licensing regime for high performance vehicles;
- The inclusion of an offence of disabling traction control;
- The introduction of a new offence that is more serious than aggravated driving without due care, but less serious than culpable/dangerous driving; and
- Immediate licence suspension of motorists charged with death by dangerous driving, until their case is resolved.
The Society looks forward to seeing the detail of these proposed reforms and intends to make a detailed submission, but offers the following initial comments:
Extra training for high performance vehicle owners
Having a more rigorous licensing regime for certain vehicles is not a novel concept. This already exists for vehicles such as motorbikes and trucks. If such a regime is proposed for high performance vehicles, it will be important to engage in extensive consultation, especially with the automotive industry, to ensure that the definition of “high performance vehicle” is clearly expressed and unambiguous, so that average road users are not subject to unnecessary and onerous extra costs.
National consistency and the ability for drivers to cross borders with an interstate licence will also need to be considered.
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Traction control offences
There would likely be practical challenges in policing laws that criminalise the disabling of traction control. It fairly common for vehicles to have several settings, such as “sports mode” which reduce traction control and might be used by motorists appropriately under certain circumstances to enhance the driving experience.
For examples, disengaging traction control can assist motorists driving on loose surfaces. Also, some older high-performance vehicles do not have traction control at all – how would the law apply in these circumstances? Any proposal relating to traction control laws would need to involve consultation with motor vehicle experts and ensure they do not lead to unintended consequences.
New reckless driving offence
Any move to introduce a new criminal offence requires compelling justification. In the case of this proposed law, the justification may be that there is an extremely wide gap in maximum penalties available for death by dangerous driving (maximum 15 years imprisonment, minimum 10 year licence disqualification) versus aggravated driving without due care (maximum 12 months imprisonment, minimum 6 month licence disqualification), and that an intermediate offence may apply to driving offences that do not meet the high standard of evidence required to prove intentionally dangerous driving, but may be considered more serious than driving without due care.
Banning licences of death by dangerous driving accused
In the Society’s view, such a law could be problematic as it assumes guilt before the evidence is tested. We know that it is common for death by dangerous driving cases to take years to go to trial, and in several of these matters there is compelling evidence that the motorist was not driving dangerously or at fault. To be denied a licence for years while the case moves through the justice system can destroy a person’s livelihood.
As a matter of principle, the Society believes that innocent until proven guilty should be a tenet of the legal system that is fiercely protected, unless the reasons to sacrifice this bedrock principle are so powerfully undeniable they cannot be ignored.
The law is not perfect – other strategies are needed
The law is an imperfect antidote. The law should reflect Society’s conceptions of morality. It is why “motive” plays a central role in our system of laws. The law comes down hard on behaviour with malicious intent. Most would agree that the harshest penalties should be for those who possess a deliberate intent to cause harm.
But the law also condemns recklessness and stupidity. If you did not intend to hurt someone, but you were so reckless that you should have known someone could have gotten hurt, that is almost as bad as intent, according to the law. And if you were bit careless, you didn’t quite think things through, the law also considers that you might deserve to be punished in some circumstances.
We live in a world where people commit wilful, sinister cold-blooded acts that cause death and severe injury, and where a clumsy action, or monetarily lapse in concentration, can also lead to the same horrific outcome. I am not saying the case in question falls under either of these categories, but the point is that we need to recognise the law cannot always mete out punishment as recompense for an action that resulted in a tragedy. The punishment should reflect the severity of and culpability for the action, rather than the magnitude of the tragedy.
The tragic case of Sophia Naismith has sparked an important discussion about road safety, and how we can better protect road users. I cannot fathom the grief that Sophia’s family must be enduring, and I like most South Australians was shattered when I heard the news of this beautiful life lost.
You might rightly expect that, as a lawyer, I will say that we need to put emotion aside and think dispassionately about proposed road safety laws. However I understand this is difficult to do when thinking about those who have lost their lives on our roads. We still need to bring a rational, evidence-based approach to discussing and developing improved road safety laws.
If our leaders are truly passionate about preventing more tragedies, they must also invest in driver education initiatives that particularly target known causes of dangerous driving.
Justin Stewart-Rattray is president, Law Society of SA
