The offence of police pursuits ("Skye's law") in New South Wales was introduced by the Crimes Amendment (Police Pursuits) Bill 2010 as a result of the death of a toddler named Skye Sassine in 2009 who was killed by the vehicle of two armed robbers which collided with her parents' vehicle during a police pursuit.
A specific offence was introduced into the Crimes Act 1900 (NSW) to target persons who participate in police pursuits while driving in a reckless or dangerous manner and to ensure the imposition of tougher penalties on criminals who have engaged in dangerous high-speed pursuits.
The legislative provision encouraged the New South Wales Police Force to conduct comprehensive reviews of the guidelines governing police pursuits so as to ensure that any pursuits carried out in the future were carried out to avoid like situations, whilst also ensuring that any offenders were apprehended for flouting legislative provisions.
Pursuant to s 51B of the Crimes Act 1900 (NSW):
"(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.
Maximum penalty -
(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".
It is usually clear from the circumstances pertaining to the offence whether the driver knew or ought reasonably to know that police officers were in pursuit of the vehicle and that the person was subsequently required to stop their vehicle.
The offence involves four elements:
- The person was driving a vehicle,
- The person knew, or should have known that they were being followed by a police officer, and the person knew or should have known that they were required to stop,
- The person did not stop as requested, and
- The person then proceeded to drive recklessly or at a dangerous speed.
Knowledge
It is apparent that the person involved must have had knowledge of the ensuing police pursuit and having held such knowledge that the person was required to stop their vehicle.
An example of how a person may have knowledge that the police are in pursuit of them is if the police officer is, for example, following in a marked vehicle with their lights flashing: Kayirici v R [2021] NSWCCA 127 at [120].
To otherwise fail to adhere to police signals, it is a clear indication that the person is attempting to evade the police officers.
If it is alleged that the person bore no knowledge that they were engaged in a police pursuit, it is a defence to an offence under s 51B(1) of the Crimes Act 1900 (NSW) if the driver had a "reasonable excuse" for not stopping their vehicle.
Should the driver bear a reasonable excuse for not stopping their vehicle, the onus will fall onto the driver to demonstrate that they were subsequently unaware of the ensuing police pursuit and therefore had not reason to suspect that they were in such a pursuit.
Driving recklessly or at a dangerous speed
Driving recklessly
Driving recklessly involves driving in a manner which generates an undeniable and serious risk of physical injury to other New South Wales' road users or damage to property of others: R v Lawrence [1982] AC 510.
It must be established that the person "drove a vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances.": Director of Public Prosecutions v Yeo [2008] NSWCCA 953 at [27] and R v Piper (No. 2) [2021] NSWDC 279 at [49].
Essentially, the conduct of the driver of the vehicle must be such that it is evident that the driver placed little or no regard to other road users when they assessed the risk of their reckless conduct. The prosecution must successfully demonstrate beyond reasonable doubt that:
- The person drove the vehicle on a New South Wales road, and
- The person drove that motor vehicle recklessly.
Should these elements be proven by the prosecution beyond a reasonable doubt, the offender will be found guilty of this element of the offence.
Dangerous speed
Driving at a dangerous speed involves driving at a speed or in a matter which creates a real danger to the public.
It must be established that the person, having regard to the nature and condition of the road, the amount of traffic and any obstructions or hazards on the road, drove at a dangerous and/or high-speed creating a real and not a hypothetical danger to other New South Wales' road users: R v Whyte [2002] NSWCCA 343 at [287].
Typically, this involves speeding at speeds exceeding 45kph or when a person departs from the standard of care reasonably required by all road users.
There are a multitude of aggravating circumstances which judicial officers is implored to take under advisement during the sentencing of an offender under this provision. These factors were outlined in Whyte at [228] below:
- The extent and nature of the injuries inflicted,
- The nature of people put at risk,
- The degree of speed,
- The degree of intoxication or of substance abuse,
- Erratic or aggressive driving,
- Competitive driving or showing off,
- Length of the journey which others were exposed to risk,
- Ignoring of warnings,
- Escaping police pursuits,
- Degree of sleep deprivation, and
- Failing to stop.
It was emphasised that should a myriad of these circumstances be present when assessing the offending conduct of the offender, the offender's moral culpability will be heightened and therefore a custodial head sentence will be more likely: Whyte at [229].
There is a necessity for an appropriate increment to be enforced to reflect the moral culpability of the offender's conduct and to deter any future offending from the community at large.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.