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- 26 September 2007
Crimes Amendment Bill 2007
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Page: 2343
Agreement in Principle
Debate resumed from 25 September 2007.
Mr GREG SMITH (Epping) [10.44 a.m.]: I speak on behalf of the Opposition to the Crimes Amendment Bill 2007. Although the Opposition does not oppose the bill, we wish to refer to some aspects and criticise the Government for rushing through this legislation. The Government should not have amended the penalties for an offence of grievous bodily harm in a bill that also removes the concept of malice as defined in the Crimes Act and its predecessor from, I think, 1878. That definition, which has continued through the various Acts, admittedly is full of problems. However, the Government has used the very serious public and social issue of rock throwing as a Trojan Horse to rush through this legislation without allowing proper consultation or giving us the opportunity to speak to the stakeholders to determine whether they are satisfied with the draft bill.
It is all very well for the Government to say that it put out a discussion paper in 2005, although it was not prepared to give us a copy, and ask the Opposition to cooperate on this important piece of legislation. In a phone call to arrange an urgent meeting we were told the legislation solely related to rock throwing. To a great extent, the rock throwing issue was an afterthought by the Government. Last week, after the Opposition had been in the media saying we need a specific offence of rock throwing, the Premier came out and said that Cabinet had decided to increase the penalty for grievous bodily harm and look at the specific offence of rock throwing.
The Government has had at least nine years of warning about the offence of rock throwing. Back in 1998 there was an incident of rock throwing involving three young men at Menangle. On 22 August 1998 they parked their car on an overpass and removed rocks from the boot. They positioned the rocks on the top rails of the overpass on the southern and northern sides. As a semitrailer passed under the bridge they pushed off the rocks. Justice Michael Adams in his sentence judgment in the cases of Regina v Sutcliffe, Regina v McGoldrick and Regina v McGoldrick , [2000] New South Wales Supreme Court, 825, said:
It seems that the idea was to hit the trailers of the trucks as they came out from under the bridge, with one or more yelling that the truck was coming as it approached the bridge with the rocks being pushed off the railing as it emerged. I have no doubt that this was a cooperative exercise in which all four offenders were involved. At the end, three rocks were left on the railing. Two of them were pushed simultaneously off the railing by [one or more of the offenders] ?
The two rocks crashed through the windscreen of the vehicle. At least one of them struck the driver in the chest, causing massive injuries and transecting the aorta, causing virtually immediate death. His vehicle went out of control, veered left striking the guard rail then right and travelled across the nature strip separating the north and south bound roadways, crossing the two northbound lanes and travelling up the western embankment where it came to a rest near a large tree.
A minute before another driver was driving his Kenworth road tanker laden with 20 tonnes of butane gas along the M5 freeway in the same direction. As he went under the Glenlee Road underpass he saw two large objects about the size of footballs fall directly in front of his truck and almost at the same time he heard a loud noise as though something had hit the cabin. He pulled into the breakdown lane, where he stopped and, upon inspection, found pieces of sandstone rock in the truck cabin and jammed into the roof area of the sleeper compartment. It is not clear which man threw the rocks. Vehicles are driven at about 100 kilometres an hour along the freeway and there is no doubt that when projectiles are thrown at them the risk of death is very high. After all, the driver of the first vehicle was killed in that manner.
This Government has been dragging the chain on this issue for nine years. I have described just one incident that occurred almost 10 years ago in which one man was killed by a rock the size of a football and another was put at risk of serious injury or death. Yet it has taken the Government almost 10 years to introduce legislation in this area, and even then it is not targeted specifically at this offence. In 2000 the Australian Capital Territory passed legislation that dealt specifically with this issue and a number of years ago the South Australian Parliament passed similar legislation banning the throwing of projectiles such as rocks at vehicles. The New South Wales Government has had years to act but what has it done? The Government has declared that it has solved the problem by increasing the penalties in the Crimes Act for maliciously inflicting grievous bodily harm. It happened to have a bill ready that removes the word "malicious" and tacks on extra penalties, which the Government claims will cover the offence of rock throwing. That is garbage.
Last week when the Premier exited a press conference he said, "I've got the Attorney General and the police Minister looking at specific legislation to see what they can come up with." He said that while the shadow Minister for Police, the Hon. Michael Gallacher, and I were holding a press conference calling for specific legislation to address this massive social problem. It is long overdue. This year there have been some 50 arrests for this sort of offence. Yet the Government has not drafted specific legislation; it has simply introduced some amendments to the Crimes Act that will increase penalties. That does not send a message to the mad men and youths who would drop rocks on people's heads.
Two weeks ago rocks were thrown at two trains travelling between Eastwood and Pennant Hills. It is a widespread and common problem. Last weekend more rocks were thrown at vehicles on the South Coast. Just a few months ago Nicole Miller suffered serious injuries when she was struck in the head by a rock. The perpetrator of that offence was granted bail by a police sergeant; he did not even have to appear in court. What is that offender's charge? He is charged with negligently causing grievous bodily harm. There are no amendments to the penalty for that offence. What is the penalty for negligently causing grievous bodily harm? Does the member for Cronulla know? Is it 15 years, 10 years or maybe five years? No, it is two years. That is all the Government can come up with. Another charge might be added in the Nicole Miller case but those involved believe the evidence will satisfy only the charge that I have mentioned.
This Government has taken very little notice of this issue. It has acted now only because of public concern and the Opposition's call for a specific offence that picks up the penalty under section 33—25 years imprisonment for those who throw rocks and other projectiles deliberately. The Opposition will also consider introducing a private member's bill that includes that provision. We will also consider amending section 35 and introducing a specific offence of throwing rocks and other projectiles at vehicles. The Opposition will also consider removing the presumption in favour of bail. Why has the Government not addressed that issue? Nothing in this legislation will make it harder for offenders to get bail. The amendment to section 35 does not change that situation. It has been claimed that it is mainly children who commit these offences. That is not true: adults are also being charged with these offences. Unfortunately, there are some crazy people in the community.
The Government must educate the community. What has it done in the nine years since the Menangle incident? Has it distributed education materials to schools, colleges of advanced education and universities? Have there been any television campaigns about this major social problem? There are advertisements on television about smoking and the harm that it causes. We have advertisements on television about the damage that drinking excessive amounts of alcohol— The Government must educate the community. What has it done in the nine years since the Menangle incident? Has it distributed education materials to schools, colleges of advanced education and universities? Have there been any television campaigns about this major social problem? There are advertisements on television about smoking and the harm that it causes. We have advertisements on television about the damage that drinking excessive amounts of alcohol—and particularly drink driving—can do to the individual and to others. I agree that they are major problems. However, instead of spending so much taxpayers' money attacking the Opposition during the last election campaign, the Government should have warned the public about the consequences of people throwing rocks and other projectiles at vehicles, trains or ferries. Yet the Government has done nothing but increase the penalties; it has not introduced a specific offence.
I do not mean to criticise the officers who briefed me on this legislation yesterday. They were just doing their job and were extremely decent and courteous. However, they disclosed something that was not part of the previous arrangements. The legislation is not just about rock throwing; it removes the word "malicious" as a fault element for offences under the Crimes Act. That word is very important. I know that it has caused confusion and has been criticised over the years by various judges, including Justice Hunt, former Chief Judge at Common Law, and more recently by Justice Sully in the 2004 Livingstone case—to which the Parliamentary Secretary referred in his speech during the agreement in principle stage.
The criminal law should never be changed by ambush or in haste. This amendment should have been put to the legal community for further discussion. The Government should have said, "We've heard what you've said. Here is our bill. We will give you two or three weeks—a little time—to look at it and see whether you are happy with the way we have changed the law." Perhaps the Government did that but it did not have the courtesy to show the legislation to the Opposition. It did not ask, "Would you support this? Do you agree with these changes? Do you have any views or suggestions?" A good government that has mastery of its brief and cares about criminal justice and law and order would generally do that when making a major reform to the criminal law—which is what removing the word "malicious" amounts to. After all, criminal justice and law and order are among the major reasons why State governments exist. State governments ensure that the community is protected.
"Malice" is a widely used term. In the Livingstone case Justice Sully criticised the existing law and said that it needed more work. We do not disagree with that but we want a chance to review any amendments. We need time to do this, yet we first sighted this amendment only the day before the bill was introduced. The Government's bill is a Trojan Horse that purports to address the great social evil of throwing rocks and projectiles. Section 5 of the Crimes Act defines "maliciously" as being:
Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering—
Does that constitute "recklessness"? What does the phrase "indifference to human life or suffering" mean? Is its meaning caught by the word "intention"? I do not think so. Does "reckless" mean the same thing? I do not think "recklessness" covers it either. The section continues:
or with intent to injure some person or persons—
"intent" is the main point of the section—
or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly—
In the expression "or done recklessly or wantonly", what was "or wantonly" intended to mean? We have the expression "wanton driving"—different from recklessness—but that has been eliminated now as a criminal offence. Section 5 continues:
shall be taken to have been done maliciously within the meaning of this Act .
The High Court in Lavender v The Queen —in which I appeared for the Crown and we won the appeal 7-0—looked at the confusion that had been caused by what appeared to be a definition of murder and manslaughter in section 18 of the Crimes Act, and that confusion had found itself in the Court of Criminal Appeal. Lavender v The Queen is a case of criminal negligence manslaughter where the driver of a front-end loader chased some boys into the scrub around a sand mine up near Newcastle. Instead of the driver just saying, "Go home. Get out of here", or something like that, he chased the boys and without being able to see or hear them he ran one of them over and killed him. He was convicted of manslaughter by negligence after proper directions were given to the jury in accordance with the law and in accordance with the decision of the Victorian Court of Criminal Appeal in the case of Nydam, which was the leading authority before Lavender on criminal negligence manslaughter.
The New South Wales Court of Criminal Appeal worked out three different ways of looking at the matter. The court considered that in accordance with the definition of murder maybe the offence of manslaughter ought to have the element of malice in it too, which had never been considered a plausible argument by courts before—there had been the occasional mention of it but never any considered examination. Unfortunately, the court did not seek further assistance in the sense of asking for submissions on the statutory history of the section to see whether it was wrong and whether there is an explanation for the possibility that manslaughter requires malice as we see it. One of the problems with the criminal justice system in this State is that there are not enough judges to handle all the work in the Supreme Court and the Court of Criminal Appeal and it would have been very difficult to reconstitute the court to hear further argument.
In a 7-0 decision the High Court said the Court of Criminal Appeal got it wrong in the three different versions. The High Court said it was clear that manslaughter did not require malice. The court looked at the definition of malice and thought that it was not very helpful anyway. In the debate we looked at the fact that the Australian Capital Territory had changed its laws, which had originally mirrored our laws in the Crimes Act and had incorporated the old definition of malice that we still have—subject to the passing of this bill—and considered that they had not necessarily got it right either. It is not an easy thing just to say, "We will change the law simply by putting in the elements of intent and recklessness", because something could be missed.
I and the Opposition, on behalf of the people of New South Wales, would like the time at least to have a look at the documents, the arguments and the learned comments of the Director of Public Prosecutions, the Senior Public Defender, the Law Reform Commission perhaps and the Criminal Law Review Division, not just to have the issue rushed into this Parliament as a Trojan Horse to deal with rock throwing. It is unfortunately an aspect of government in this State that at the moment there is not much order in the running of this Parliament and bills are suddenly brought on urgently. Why could we not have had some notice a few weeks ago? We are still doing our work out in our electorate offices; we are coming into Parliament regularly for conferences; we all work hard, but we would put time into something like this.
I, those advising me, and those who have an interest on our side—and there are many—would have put time into looking at this question of the amendment of "malice", because it is a fundamental issue; it is not something that should be rushed in. I notice the Government did not address the matter in its last parliamentary term: there was no foreshadowing of it and it was not on its election platform. It is not as if the Government had a mandate for it. This is an attempt to correct an anomaly but we should at least have had an opportunity to have a decent look at it, as should the stakeholders involved.
I mentioned the South Australian law that we will look at incorporating in our three-pronged bill. Section 32A (1) of that legislation, Throwing objects at vehicles, states that:
A person must not throw a prescribed object at, or drop a prescribed object on, a
vehicle that is being driven on a road or road-related area or being run on a busway,
railway or tramway (whether, at the time the object is thrown or dropped, the vehicle
is moving or stationary).
The offence carries a maximum penalty of imprisonment for five years. I have not had time in the rush of this week to look at that from the point of view of finding equivalent legislation in New South Wales. I do not think there is any, but I might be wrong. I believe that throwing objects at vehicles should be banned in any legislation if the Government honours its suggestion mooted by the Premier last week that it will bring forward some specific legislation to cover rock throwing. I do not think people should benefit from the fact that what they threw missed hitting somebody or, in the case of a rock the size of a football, that it did not hit the driver. There should still be some sort of punishment for the act itself. Maybe the offence is covered in the area of assault or something of that sort at the moment but I am certainly not aware of anything specific. I am sure the Parliamentary Secretary will disabuse me of that view if I am wrong.
On the question of bail, whilst the Bail Act does not exist to punish people, there have already been a number of cutting and pasting amendments adding to the presumptions of bail and various other things. The Bail Act is a very confusing document, especially for journalists and the public generally. I think one probably needs to be a High Court judge to steer one's way through it, but I think it would be good to put in a presumption against the grant of bail for this most antisocial behaviour when it is compared with some of the other offences that do have a presumption against bail, for example, murder. Rock throwing can turn into a murder case; people may do it with intent to kill or cause grievous bodily harm. In fact, in the case of McGoldrick the offenders were charged with murder because an act done with reckless indifference to human life—which the courts have treated slightly differently from other types of recklessness over the years—can be an act of murder and can receive very substantial punishment.
There is no criticism of the worthy advisers and staffers of the Attorney General who have cooperated with me and with the Opposition in assisting as much as they are allowed to do, but there is criticism of the Attorney General being at Government House yesterday when he should have been answering questions on this sort of issue. It was not important enough for Parliament to have question time; members headed down to Government House for afternoon tea. It is always a great pleasure to visit Her Excellency and she is doing a great job for this State, but I do not believe members should have gone to Government House and, as a result, not have question time.
The Attorney General has today released other comments about rape cases. We constantly look at each other's material and I am highly critical of him for what he has done. He is treating this Parliament as his toy, just as he has been treating other agencies of the criminal justice system with contempt. It is about time that he provided a good explanation about why this aspect of the legislation should be rushed through. Why could the Government not make an amendment to section 35 and the other sections increasing the penalties using the expression "maliciously" and allow us to look at the other issues with a little reflection and time so we can do our job and serve our community in the way it wants us to serve it and to ensure that the laws that determine how the criminal justice system operates are considered laws?
Mr MALCOLM KERR (Cronulla) [11.11 a.m.]: The people of New South Wales have every reason to be angry about the Government's treatment of this matter. It is an absolute disgrace. As members of Parliament would be aware, in recent times a number of people have thrown rocks at or dropped rocks on moving vehicles. Can the Parliamentary Secretary Assisting the Attorney General seriously say, as he did yesterday, that it is only in recent times that he has been aware of the actions of these cowardly criminals? It has been going on for years. As the shadow Attorney General said, there was a notorious case 10 years ago and we are all aware of these incidents occurring every year. This problem should have been dealt with years ago, not yesterday. This Government has been in office for 11 years but we have had to wait until now for this measure. It is an insult to the people of New South Wales for any member of this Government to say that members have become aware of the situation only in recent times. All members have been aware of this problem for many years.
What is even more appalling is that the legal problems have been spelt out to this Government on a number of occasions. The Parliamentary Secretary confessed in the course of his agreement in principle speech that His Honour Judge Ducker of the New South Wales District Court made mention of this situation in his judgment in R v TRR . When was that delivered? Was it in recent times—last week, in the past few days or in March? No, it was delivered on 6 August 2003. The judge said that he considered the disparity in sentence and the low level of maximum sentence in relation to section 35 entitled "grievous harm offences" as irrational, unsustainable and in need of urgent reform—I repeat, urgent reform. This issue was a matter of public record on 6 August 2003; this Government would have been aware of it. When did the Parliamentary Secretary become aware of Judge Ducker's remarks?
Mr Barry Collier: When did you? When you read them in Hansard last night.
Mr MALCOLM KERR: Exactly! There was a Crown prosecution and public judgment. This Government should have been aware of it and it should have taken action on 7 August 2003. An examination of other Australian jurisdictions that have similar offences to maliciously inflicting grievous bodily harm indicates that a maximum penalty of seven years is at the low end of maximum penalties imposed. What an extraordinary thing. Would it not have been a good idea on 7 August 2003 to look at the way other jurisdictions were dealing with the issue? We are now dealing with it on 26 September 2007. Surely given that this is a very serious problem that results in death and injuries—it is something that could happen to any member of this House or any member of their family as they are driving along—it should be above party politics and all of us should be engaged in trying to resolve it. The Parliamentary Secretary stated in his agreement in principle speech:
In light of the significance of this change, consultation has been undertaken with key stakeholders. In 2005 the Criminal Law Review Division of the Attorney General's Department issued a discussion paper which raised the prospect of replacing the term "maliciousness" throughout the Crimes Act. Formal responses were received from various stakeholders, including the Chief Magistrate of the Local Court, the Law Society of New South Wales, the Director of Public Prosecutions and the Legal Aid Commission of New South Wales.
Will those responses be made available to the general public? Those matters are important and were referred to by the shadow Attorney General. The shadow Attorney General has had considerable experience of these matters and he referred to a case in which he appeared for the Crown before the High Court. One would have thought that any Government that was genuinely interested in dealing with this problem would have provided him with information to enable him to be of assistance and to make a contribution. That is not what happened. The Parliamentary Secretary detailed the extent of the consultation with the shadow Attorney General undertaken by this Government.
I level no criticism at officers of the Attorney General's Department, but I do criticise the Government for failing to consult an eminent person with experience in these matters who could have provided assistance to the people of New South Wales to get this legislation right. This is not simply a legal matter that can be resolved by rearranging words in the statute and increasing the penalties. The people of New South Wales want these actions to be potential offences rather than actual offences. The Parliamentary Secretary's agreement in principle speech contained not one word about any preventive action this Government is taking. It has been aware of the situation for years but it has said nothing about how it intends to prevent rock throwing.
This bill also deals with house breaking. Once again, the Parliamentary Secretary made a confession in the agreement in principle speech. He said that he was now turning to modernising and went on to discuss house breaking. It is 2007! Section 112 of the Crimes Act provides that an offence is committed by any person who breaks, enters and commits a serious indictable offence. Section 113 of the Act repeats the same list in relation to the offence of breaking and entering with intent to commit a serious offence. The Parliamentary Secretary said that the list is lengthy, old-fashioned and potentially contains gaps. What a discovery! It was held in 1970—37 years ago—that a building belonging to the Commonwealth is not a building belonging to His Majesty or any government department. Surely in 1970 it would have been a matter for Her Majesty.
Mr Barry Collier: The court said that.
Mr MALCOLM KERR: I note that the reference contains quotation marks. I acknowledge that the Parliamentary Secretary is pleading not guilty in that case, and that the Government is aware of the royal succession. The agreement in principle speech goes on, "More recently, in December 2003, District Court a judge found that a bowling and recreation club did not fit within any of the described premises." I would have thought that was a matter that should have been attended to back in 2003. We should not have had to wait until September 2007. I can inform the honourable member for Miranda that a bowling club is a significant activity in the shire and in New South Wales generally. Members of a bowling club should have been entitled to the further protection that was highlighted in the District Court more than four years ago. As I said, there is not just housebreaking. Matters relating to blackmail are included as sort of an all-embracing, let us throw a few things into the mix bill. As I said, the people of New South Wales should not have had to wait.
We may well find that this legislation is inadequate and has to be revisited. If that happens, it will be a matter of record that there has been a failure of consultation—that the member for Epping, given his background, could well have assisted. The people of New South Wales should have had more adequate consultation. Parliament has not sat for months, so the Government has had months to deal with that. "Recent times" should have included May or June 2007, and the Government should have been working on this legislation during the break, consulting the various stakeholders and the Opposition to get it right. This legislation is crucial to the welfare of the people of New South Wales and their families. It is simply not good enough, and the people of New South Wales have every reason to be angry with the approach taken by this Government.
Mrs DAWN FARDELL (Dubbo) [11.22 a.m.]: I shall not take much time, I will get straight to the point. I do not have the legal training of the members for Miranda, Epping and Cronulla, but I certainly appreciate the arguments of the members for Epping and Cronulla about the rushing through of this bill. It concerns me that we have not been fully briefed. This is important. Many of these issues raise their ugly head in my electorate of Dubbo. I would have liked to have had placed in front of me all the knowledge that the proponents of the bill have. While I have been away from this place for three months I have been active in my community, but I would have still found the time to research this bill thoroughly.
In Dubbo we currently hold whole-of-government meetings. The member for Tamworth came to last Friday's meeting. He was interested in how they had progressed, because decisions made at those meetings have reduced crime in Dubbo. The attendees at my meetings—me, local government, State government agencies, non-government agencies and Federal government agencies—would also have liked to have known what was in the brief that Government members received about the changes proposed by this bill, although those members were probably not fully conversant with them and would have voted as they were requested to vote. We would have liked to have had full details of that information. For example, paedophiles trying to groom children for sex is a major issue, particularly in the low-income communities.
Mr Barry Collier: Point of order: There is nothing in this bill, as I understand it, about grooming children for sex. It is more about malicious injury and damage. I understand the member is reading from a press release. There is no mention of those sorts of offences in this bill.
The DEPUTY-SPEAKER: Order! That is not a point of order; it is a point of clarification.
Mrs DAWN FARDELL: I am reading from the Premier's statement: "Paedophiles who try to groom children for sex". That is where I have taken my comments from. Are rock throwers covered by the bill? I am aware there have been some fatal incidents in various parts of the State, but they have been committed by adults. In the electorate of Dubbo the rock throwers are young children. Where does the bill address the treatment for them? Are juveniles, the under-10s, untouchable? What Act do they come under when they are throwing rocks at buses? The bill also refers to causing grievous bodily harm, people who do not control dogs, and blackmail offences. What types of incidents of blackmail offences is the Government aware of that I am not aware of? I would like to know why those offences had to be included in this major penalty package that was unveiled yesterday.
I need to know these things. If, in a short time, I have to cast my vote I would have to vote against the bill because of my ignorance of what is in the bill, not having been properly briefed. It is being rushed through. It should be explained clearly to me so I can understand an issue before I have to vote for or against it. I will vote for it if I agree with it, but at the moment I cannot, because I do not have enough information. In December 2006 we rushed through legislation concerning riots. Following riots in the following January the legislation was challenged by those who were arrested. A technicality in the law had been overlooked because the legislation was rushed through, and the police were made to look like fools. I do not want to look a fool by voting on an issue that I do not have enough information on. By all means let us proceed with this debate but let us not vote on it until all members of this place are fully informed.
Mr GREG APLIN (Albury) [11.26 a.m.]: I make a contribution on the Crimes Amendment Bill 2007 and represent the views of the constituents of the electorate of Albury in connection with the particular provisions of recklessly causing grievous bodily harm. I refer particularly to the throwing of missiles onto roadways. I am concerned that the bill attaches importance only to the commission of the act of causing grievous bodily harm rather than to the intention to cause grievous bodily harm. I refer the Minister to an incident that occurred in Albury only last week which I believe would signify the importance of addressing the issue of intention rather than just the causing of grievous bodily harm.
A gaping hole was discovered in wire mesh on an overpass over the freeway that runs through Albury-Wodonga. This hole was discovered to be as large as a person's head and was clearly cut directly above the northbound lane of the Albury-Wodonga Freeway deliberately for the launching of missiles at vehicles. The cutting of such a hole obviously signifies an intention to cause grievous bodily harm and in itself is not the cause of grievous bodily harm. But I believe that people who indulge in such behaviour obviously exhibit an intent and should fall within the provisions of this bill. People who cut holes in fences on bridges should be charged with something other than malicious damage, given that this bill has been introduced specifically to attack incidents that have been prevalent in New South Wales for far too long but particularly over recent weeks.
This particular hole in the wire mesh was discovered some four weeks ago and was reported to the management company for that freeway and to council and was then referred to the Roads and Traffic Authority. It was only when the local newspaper was contacted and visited that action was taken to repair the hole. That is not good enough. I ask that incidents like this, when reported, receive treatment and attention more immediately, and that the police are alerted so they can endeavour to apprehend the criminal elements who create situations whereby they can launch missiles. We are not concerned merely with rocks; any missile can cause an accident.
I refer to another recent incident in Albury: the launching of a shopping trolley onto the southbound lane between Dean Street and Kenilworth Street pedestrian bridge one weekend. It is uncertain as to how the shopping trolley came to rest on the freeway. It is more likely that it was launched from the side of the road than from the overpass, but that incident again illustrates the fact that we are not dealing only with stones or rocks, dangerous as they are, but with a whole host of missiles. Indeed, any missile that unexpectedly lands on a vehicle travelling at high speed, particularly on the windscreen, is likely to cause significant damage. It is only through sheer luck or the ability of the driver to avoid an accident that grievous bodily harm is avoided.
That goes to the heart of the bill, which looks only at the injury rather than the possibility that an accident was avoided only by good luck or sheer ability. In those situations the alleged perpetrators should fall within the ambit of the bill and should be charged accordingly. Police in the Albury area have had reports of flowerpots and stones being lobbed onto the freeway, but at that stage the perpetrators could only be charged with endangering life. Those incidents were not confined to juveniles, so clearly we need an educational process to be instituted. The bill should cover the launching of all missiles that could cause grievous bodily harm and the intention to cause such injury. In the words of the police, the throwing of these missiles might seem like a fun thing to do, but it can cause serious injury and it can kill.
In October last year an Albury businesswoman said it was only a matter of time before someone was seriously injured or killed by rocks being thrown at cars on the Union Bridge. At that stage that was the bridge across the Murray River linking Albury and Wodonga and was part of the Hume Highway. This lady was still shaking after being showered with glass when a rock struck the windscreen of her vehicle. She was travelling with her son at two o'clock in the afternoon when the rock struck. She described it as being like a gun going off. She said:
We didn't see anything or anyone. The first thing we knew was when it hit the windscreen. We were both showered with glass but neither of us was injured. We were just lucky. If the rock had come through the window, who knows what might have happened?
As it happened, the rock bounced. The lady kept a level head and was particularly lucky. She made the observation that had she swerved or acted impulsively she could have ended up under a B-double, the type of vehicle that constantly uses the Hume Highway. Indeed, the bill is deficient in that it takes no account of the circumstances in which this woman found herself. She and her son were not injured, but she could easily have caused an accident by swerving and forcing a B-double truck to run off the highway into other vehicles, thus causing tremendous carnage. Although kids and others might think that is funny, it is only a matter of time before someone is seriously injured or killed.
The bill is only now being introduced, despite a litany of concerns that have been raised by the media and by members over many years. It seeks to address an issue that has been looming for some time but has been neglected. In 2000 a Border Mail photographer caught two boys hiding behind the pylon next to the bridge lobbing rocks at cars. Two months later there were reports of children throwing rocks from Borella Road towards construction workers driving large machinery, so these incidents are not isolated events in the border area. We know only too well of fatalities and serious incidents that have occurred over many years throughout New South Wales. It is time for action. The bill is long overdue and it should take into account intention, not only the actual causation of grievous bodily harm.
Mr JOHN TURNER (Myall Lakes) [11.34 a.m.]: Opposition speakers have referred to the tardiness of the bill. The Opposition does not oppose the bill, but we ask the Parliamentary Secretary to address in reply why it has taken so long to come before the House and why it is now being rushed through. My contribution relates to problems in my electorate, particularly in the Purfleet area. Police responded to a letter I wrote following a rock-throwing outbreak in Purfleet in June of this year. They stated that such incidents had been a problem in the area for 20 years. That highlights the extent of the problem, which is generally caused by juveniles, or sometimes by juveniles imitating older people who throw rocks. In the June outbreak there were 10 reported incidents of rocks being hurled. An article in the Manning River Times of 27 June 2007 states:
Some Manning River residents who contacted the Times say they are now too afraid of being hit by rocks to drive between the two roundabouts at night.
The alternate route to Taree would require them to travel a considerable distance further, but some people have been doing that to avoid the Purfleet area. One lady whose vehicle was hit by a rock said that she and her husband stopped the vehicle and discovered that it had been hit by pavers on the passenger doors, the side skirt and the bonnet. She said:
It's beyond a joke out there.
She was afraid that it was only a matter of time before someone is killed. Valerie from Wingham said that she was driving between the two roundabouts on Sunday night about seven o'clock with her two-year-old son in the back seat when she heard the thud of an object. She assumed it was a rock hitting the passenger door about 20 centimetres below the window. She said:
My biggest fear is that it is going to hit the window when there is a little child in the back—glass could go in their eyes or anything.
They are quotes from people who were involved in incidents at that time. I made representations to the police on behalf of Mr Peacock, who said he was the fifth car that night that had been hit by rocks. He reported the incident to the police, who took the matter seriously. However, the difficulty was catching people in the act. Mr Peacock said:
I was only lucky that the rocks or pavers ? that was thrown did not go through the window and hit my wife.
He had $2,000 worth of damage done to his car. Police have attempted to solve the problem but it is difficult to identify the perpetrators. Police caught and took action against the perpetrator, who, unfortunately, was a 10-year-old child. The area commander said in his letter to me:
It is well accepted that the majority of offenders are juveniles that live in, or frequent the Purfleet area. The offenders are generally Aboriginal juveniles under the age of 10 years.
There has been reference to education. I give the police yet another tick. The commander also said:
The Manning Great Lakes Local Area Command's Youth Liaison Officer, Senior Constable Ray Slade and the Aboriginal Community Liaison Officers have spoken to numerous other suspects and the parents in an attempt to cease the practice. We also co-sponsored a local 10 week education program which targeted the juveniles and attempted to educate them on the dangers of rock throwing. Unfortunately, this program stopped after 7 weeks due to the failure of the juveniles to turn up for the voluntary program.
In the circumstances that was unfortunate. Obviously this is a real problem statewide, and in parochial terms I must say that it has been a huge problem in my electorate for many years. I am not sure that this legislation will stop it. It will send a very strong message to the community and to those involved that finally the Government has become serious about the problem and is attempting to do something about it. I can only hope that there is a better educative program to try to stop younger people from taking part in this activity. They must be taught what their responsibilities are and the consequences of their actions. In particular, their parents must be brought to account; they must be part of the cure as well.
Mr ROBERT OAKESHOTT (Port Macquarie) [11.44 p.m.]: I endorse the Crimes Amendment Bill 2007. The explanatory note identifies only in general terms some of the substantial issues in the bill. On the surface the bill looks good, but I hope that when legislation such as this comes before the House in the future the explanatory notes go into greater detail. The explanatory note certainly refers to the increases in penalties for causing grievous bodily harm as a result of rock throwing. My electorate on the mid North Coast is alongside the electorate of the member who has just spoken, and I confirm what he said: rock throwing is a real issue. In the Taree community, with the Pacific Highway passing nearby, rock throwing causes the community a lot of concern at various times. The bill makes important changes in many areas of the law and I hope they will make a difference.
The other point I wish to make is that, of all the legislation we deal with in this House, legislation dealing with the criminal law is one area in which it makes sense to follow national principles. I hope we all agree with that. A great deal of work has been done by various Australian governments to develop uniform criminal codes. Without having gone through the detail in the bill I assume—and I certainly hope—that the amendments in it fit in with the national reforms that the States and Commonwealth are attempting to implement in an effort to develop uniform criminal codes. I hope the difficulties caused by State boundaries in regard to the prosecution of criminal acts are long behind us. I hope the reforms in the bill are not just the reforms of a barrister who is now the Attorney General, and that they actually fit in with national principles and with the direction that the States and the Commonwealth are taking in regard to the criminal law. With that reservation, I certainly endorse the direction of the bill.
Mrs JUDY HOPWOOD (Hornsby) [11.46 a.m.]: I speak briefly to the Crimes Amendment Bill 2007 because of a couple of incidents that have happened in the electorate of Hornsby. The object of the bill is to amends the Crimes Act 1900 by increasing penalties for the reckless infliction of grievous bodily harm, by replacing "malicious" as a fault element of offences with the modern fault element of "intention" or "recklessness", by modernising blackmail offences and by making other reforms of the criminal law. The bill increases the penalty for recklessly causing grievous bodily harm from 7 years to 10 years and from 10 years to 14 years for an offence committed in company, replaces existing blackmail and extortion offences with offences based on the Model Criminal Code, ensures that for all offences under the Act the infliction of grievous bodily harm includes causing a person to contract a grievous bodily disease, and extends the offence of breaking and entering dwelling- houses or certain other commercial or government buildings and committing, or intending to commit, a serious indictable offence to buildings of any kind.
On at least two occasions—and there are perhaps more that I do not know about—rock and egg throwing incidents in my electorate have had the potential to cause a great deal of harm. The first of these incidents involved a driver and the second involved two young women who were getting into their car after leaving a friend's house at Mount Colah. On the first occasion a young woman was driving her small vehicle home along the Pacific Highway. She was about to turn left into Beryl Avenue in Mount Colah when suddenly there was a huge crash on her windscreen, which caused a great deal of alarm. This was the result of perpetrators throwing a rock which could have caused serious injury to the young woman. She was lucky that the rock did not enter her vehicle. If it had done so it could have occasioned serious injury. The windscreen cracked and sustained considerable damage.
Rock-throwing does not have to be from an overhead bridge. On this occasion the rock was thrown from adjacent bushland on to the roadway, the perpetrators obviously taking advantage of the fact that the driver was slowing down to make the left-hand turn. It could have been a bullet. The matter was reported to the police, but the perpetrators had every opportunity to get away. In the second incident eggs were thrown from a vehicle towards two young women who were leaving a friend's house in the same area of Mount Colah. One of the young women sustained severe welts to her legs and arms. The second was wearing a tracksuit, which tended to reduce the amount of damage. Those uncooked eggs were obviously designed to smash upon impact and inflict pain. If they had hit one of those young women in the eye it could have led to a loss of sight. The bill also relates to many other aspects of the law, but it is extremely important to emphasise the unacceptability of missiles being thrown. Missiles can be thrown from places other than overhead bridges and they can be objects other than rocks. Anything that is thrown from any place with the intention to cause mischief can be extremely dangerous.
Ms KATRINA HODGKINSON (Burrinjuck) [11.49 a.m.]: I endorse the comments that have been made thus far by my colleagues in relation to the Crimes Amendment Bill 2007. The object of the bill is to increase penalties for causing grievous bodily harm as a result of the throwing of rocks or other missiles from 7 years to 10 years and from 10 years to 14 years for an offence committed in company. The bill also removes "malicious" as a fault element of offences under the Act and replaces it with the modern fault element of "intention" or "recklessness". The shadow Attorney General has made a comprehensive contribution to the debate. He outlined the many areas in relation to these offences that he believes need amendment or correction. I will not go over those again because he has done an excellent job.
The bill ensures that the offence of inflicting grievous bodily harm includes causing a person to contract a grievous bodily disease. It also extends the offence of breaking and entering dwelling-houses or certain other commercial or government buildings and committing, or intending to commit, a serious indictable offence to buildings of any kind. As the member for Hornsby and other members have said, a spate of rock throwing attacks has been taking place across the State. I regularly travel along the Hume freeway—I know the member for Monaro frequently does as well—and this spate of attacks is a serious issue for all commuters at some point or another.
Just yesterday I was driving along William Street, through the Kings Cross tunnel and over the other side towards Ocean Street. On a pedestrian overpass a fellow was leaning over with something in his hand. As I was aware of this bill coming before the House, I wondered whether a missile was about to hit my windscreen. He only had a camera—although if he dropped it, it could have caused some damage—and there was obviously no ill intent. Many things can be done to deter this dangerous behaviour. Since 1999 or 2000 specially made grilles have been installed on the overpasses along the Hume Freeway to stop people throwing rocks.
Much more can be done to deter people from throwing rocks, particularly from overpasses onto heavy traffic, such as at either end of the Cross City Tunnel and exit roads and along William Street. The Government should erect more grilles to discourage delinquents and others from throwing missiles and risking the lives and limbs of drivers and passengers. I raise that point because it has not yet been canvassed in this debate. If we take these positive steps to deter this type action in the long run it will save a lot of taxpayers' money. As I said at the outset, the shadow Attorney General did an excellent job in speaking to the bill and I do not need to add further to his comments.
Mr BRAD HAZZARD (Wakehurst) [11.53 a.m.]: I speak briefly to the Crimes Amendment Bill 2007. As previous Coalition speakers have said, the position, in a broad sense, has been put very effectively by the shadow Attorney General. For the reasons given, the Coalition does not oppose the bill. I speak to the bill because the incident that gave rise to it, or at least the amendments relating to malicious damage caused by a missile, occurred in my electorate. When the incident became public the Northern Beaches Local Area Command responded effectively. I acknowledge Inspector Paul Devaney and the numerous police officers who responded to the incident on a cold and wet night at Allambie Heights. I have an interest in this matter because John Marinovic is a young man who is extremely well known to me. In fact, John, who is a great basketballer, has spent many, many hours in my house over the past few years.
On many occasions he has been in the company of me and my family. I was quite disturbed to learn that a person had thrown a rock and injured one of our young people on the northern beaches, but I was particularly disturbed when the injured person was someone I knew so well. I was pleased that the police were out doing the work that we expect from them in difficult circumstances on a cold night. I formally thank the various officers, both junior and senior, who went through the grass verge off Allambie Road under spotlight. They did an amazing job, responding in very difficult circumstances some hours after the event, once they had been notified of the offence. On behalf of the community I also formally thank the police from the Northern Beaches Local Area Command, particularly Inspector Paul Devaney, for the work they did and continue to do. I have heard reports that they are still working very hard in the North Curl Curl area to find out who threw the rock that caused the major injury to Johnny Marinovic.
There is a lesson that young people can learn from this incident. It seems that some skylarking was going on before the rock was thrown. Year 12 students are now coming to the end of their school life, not just on the northern beaches but right across New South Wales. I issue this warning to young people right across the State: They might think it is funny to go out and throw eggs or do something silly, but people may respond in a wholly inappropriate and extremely dangerous way. Egg throwing can be extremely dangerous. Throwing any object from a vehicle is a dangerous pursuit. Young people who will be celebrating the end of their school life in the next week or so should think about that and avoid any action that potentially will hurt them or others.
I have raised an issue with the Government about the bill. Perhaps at some stage the Government could address my concerns. About two years ago I was on the receiving end of a rock. Whilst driving along the Cahill Expressway, at the west end as I passed under a bridge, I was afraid that an object would hit my car. The legislation addresses the aspect of grievous bodily harm. I believe the legislation needs to be reviewed and that throwing any object at a car should be made an offence with a substantial deterrent. When it occurred to me I was distracted from what I was doing. It is a horrible experience to have an object thrown at you. I was lucky it did not do major damage to my car. I stopped and looked to see who had thrown the object. In normal circumstances on roadways it is extremely dangerous for people to throw anything at a vehicle. I suggest that at some point the Government needs to examine whether there is sufficient deterrent against throwing an object at a moving vehicle, let alone causing damage, as is referred to in section 35, which has been amended with increased penalties. Section 35 (1) states:
A person who, in the company of another person or persons, recklessly causes grievous bodily harm to any person is guilty of an offence.
I believe we should go one step further and provide that throwing an object at a car should be sufficient to warrant an appropriate penalty. I raise that issue with the Government and ask that we address it in the future. On my behalf and on behalf of the local community I wish Johnny Marinovic and his family the best. I know that his medical condition is improving and, hopefully, he will be out of hospital very soon. On behalf of the community I extend our best wishes to Johnny and his family, particularly his parents, Sharon and Mark Marinovic, and his sister. I am sure they have been through a horrific experience. No-one would want their son to be in that situation.
Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [11.58 a.m.], in reply: I thank the members for Epping, Cronulla, Dubbo, Albury, Myall Lakes, Port Macquarie, Hornsby, Burrinjuck and Wakehurst for their contributions to the debate. Throwing rocks is dangerous and stupid and the people who throw them are not just cowards: they are criminals who should face tough jail terms. I wish to respond to issues that were raised by various speakers. In recent times a spate of rock throwing has occurred, as was acknowledged by the member for Burrinjuck. The Government is concerned about the recent attention this issue has gained in the media. There is a strong possibility that people may be attempted to commit copycat offences.
The Government is specifically concerned that this type of activity may occur during the fast-approaching school holiday period. Many New South Wales families will be on the roads over the next two weeks. The Government is determined to send a clear and strong message that this dangerous and idiotic activity should stop. Members will note that the new provisions and increased penalties relating to recklessly inflicting grievous bodily harm commence on the assent of the bill. The Government is of the view that they should be in place by the end of the week.
I note that the Opposition supports the provisions of this bill, which are about sending a strong and clear message to the community in relation to not only rock throwing but other offences also. The member for Myall Lakes and the member for Port Macquarie wanted to know whether changes to the legislation reflect changes to the national criminal codes. I am advised that that is so and that the extortion offences outlined in the bill are very good examples of that. This bill needed to be passed urgently because of public concern and attention drawn by the media recently to the spate of rock throwing in the community.
In relation to amendments being dealt with separately to increase penalties and to delete the word "maliciously", those members who have read the bill will clearly see that there are two sets of amendments. These are interwoven and relate to section 35. The Government's view is that these amendments need to travel together in order to minimise confusion and avoid the undesirable result of having to amend the same provision twice in the same parliamentary session.
The member for Wakehurst raised the issue of a standalone offence in relation to the act of throwing things at vehicles. It is my understanding that the Attorney General and the police Minister are looking at this issue. All members raised particular concerns about cases that have arisen in the circumstances of rock throwing and other unlawful activities that have occurred in their electorates. I point out that there have always been offences to deal with these types of criminal activities from murder down to lesser crimes, as the shadow Attorney General indicated. I understand that the historical case of Sutcliffe the shadow Attorney General referred to was dealt with under the charge of manslaughter, which carries a maximum penalty of 25 years. But for many, many years other offences from murder down to manslaughter, grievous bodily harm, malicious damage and assault have existed.
The member for Albury raised a number of issues about people cutting holes in fences to gain access to places from where they can throw rocks off rail bridges and so on. I point out to the member for Albury that there are a number of offences with which persons can be charged in the circumstances he described—malicious damage and common assault are just two. The law of attempt is very relevant also to those offences. Perhaps the member for Albury should read the bill a little more closely: it takes into account intention and recklessness. The member for Dubbo spoke of certain events in her electorate. Those matters also could be dealt with now under the existing criminal code.
The member for Cronulla raised the issue of penalties. Assault penalties have been in place since 1900. Whether the Liberal Party should have amended the penalties when it was in government is a matter for the Liberal Party. It has had opportunities to deal with the concerns it has, to change the term "maliciously" and so on. The responses by the member for Cronulla and the shadow Attorney General show again that the Opposition has no plan. The Opposition has no ideas—nothing. But the Government is doing something about this particular problem.
Another issue raised was in relation to bail. The Government is examining the operation and effectiveness of the Bail Act. The review will look at the general issue of bail presumptions. Magistrates have certain discretions under the Bail Act, and amendments to the Bail Act are clearly outside the scope of this bill, which refers to another Act. The term "maliciousness" has always caused problems for judges, lawyers, defendants, the general public—
Mr Brad Hazzard: And the Opposition.
Mr BARRY COLLIER: —the Opposition and the media too. If the shadow Attorney General thinks the media have problems with the Bail Act, having read out the definition of "malicious" as it appears in section 5 of the Crimes Act, he will have even more problems with the term "malicious". Judicial criticisms of "malicious" have suggested that the term be replaced with modern mental fault elements such as "recklessly" or "intentionally". That is what we have done. No court or legal practitioner has ever suggested that "wantonly" or any other archaic term should be used. In fact, it was quite often difficult to get a conviction even for offences such as wanton driving, which was mentioned by the shadow Attorney General. When we refer to the model criminal code and the development of the criminal law in line with the national code these terms are certainly not used. We are making changes in line with changes made to the national code.
Much has been made about consultation. Changing the law in relation to the term "malicious" is a change of significance and consultation has been undertaken with key stakeholders. In 2005 the Attorney General's Department first proposed the reform and the Director of Public Prosecutions was invited to comment. Formal responses were received from the various stakeholders including the Chief Magistrate of the Local Court, the Law Society, the Director of Public Prosecutions and the Legal Aid Commission of New South Wales. I am advised that there was general support amongst all respondents, with the idea of deleting all reference to the word "maliciously" in existing offences and instead inserting the term "recklessly" or "intentionally", as required.
The Director of Public Prosecutions was invited to comment. The shadow Attorney General stated that if he had had the time he would have looked at it. The member for Cronulla suggested that, had the shadow Attorney General been given the opportunity to consider it, it would have been a good thing, given his experience. I do not question the level and degree of experience of the shadow Attorney General, who is a Senior Counsel and was senior Deputy Director of Public Prosecutions. But, although the shadow Attorney General claims he had no knowledge of the discussion paper and that he would have had a look at it if he had had time, the fact is that the shadow Attorney General was Deputy Director of Public Prosecutions at the time we sought advice from the Director of Public Prosecutions.
Surely Mr Cowdery and the Deputy Director of Public Prosecutions talked to each other and surely the shadow Attorney General had every opportunity as Deputy Director of Prosecutions to have input into that discussion paper. Perhaps the shadow Attorney General, as he is now, was on leave, but I would have thought the Director of Public Prosecutions would have consulted his right-hand man, Mr Greg Smith, SC, at the time. It is trite for the shadow Attorney General to say in this House that he did not know about the matter, that he did not have an opportunity to look at it and that nobody spoke to him about it.
A crossbench briefing was provided yesterday to the Independent members of the House, and I understand that Mrs Fardell could have participated. However, I am sure that if she has any further inquiries or would like to discuss the issue she can do so with officers of the Attorney General's Department. The Government believes that this bill sends a strong message that this dangerous and idiotic activity should stop and that the residents of New South Wales travelling during the school holidays have every right to do so in safety. I again note that the Opposition supports the bill and that it sees it as an important measure. 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.
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