n16sb205 b1 Mum angry about golf ball through car window Michelle Komljenovic  pic Steven Crabtree 061011
n16sb205 b1 Mum angry about golf ball through car window Michelle Komljenovic pic Steven Crabtree 061011

Horror scenario that could see you charged with murder

CHRISTMAS - the season which both blesses and stresses. The blessings include time with family and friends and the joy on the faces of kids as they rip open the wrappings on the treasure that Santa has bestowed upon them.

Stresses include the madness involved in helping Santa put together, wrap and distribute his hoard, part of which involves finding a parking space at a time when they have become rarer than hen's teeth and more fought over than any stretch of land in the Middle East.

Picture a young mother on such a quest - driving slowly through a hot car park, kids in the back seat fighting each other and the air-conditioning fighting the heatwave conditions outside. Her eyes scan the car park and occasionally flick into the rear-view mirror to ensure her children have not escalated beyond "did not/did too" to something more serous.

Suddenly, as if through divine providence, an empty space appears and she proceeds to it at an accelerated pace. At that moment, a particularly volatile exchange causes her to flick her eyes to the mirror once again and see one child grabbing the ear of the other and pulling hard.

Bill Potts has detailed a horror driving scenario that could see ordinary people charged with murder.
Bill Potts has detailed a horror driving scenario that could see ordinary people charged with murder.

She quickly reaches back and snatches the hand away, in a move she has done a hundred times without event. This time her foot slips from break to pedal and the car lurches forward.

Ahead of her in the car park, someone else is struggling with the heat; an elderly lady on an expedition for presents for great-grandchildren, using a wheeled walker to cross the desert-like car park. Wilting in the heat, she stumbles sideways at the exact moment the young mother's car lurches forward; the grandmother is struck and killed instantly. What happens next?

In Queensland, the young mother might be in real trouble. She could be charged with dangerous operation of a motor vehicle, but it might also be determined that she had been recklessly indifferent to the consequences of her actions; and in this state, that can upgrade the charge to murder.

Fanciful? Hardly. Recently a woman was charged with the murder of her two children after leaving them in a hot car. I can't discuss that case, but there are many other scenarios where this law could be used. The scenario I described with the female driver might well produce a media outcry; police may feel great pressure to proffer the charge. What if the young mother still had alcohol from her Christmas party lingering in her system, below the legal limit but still a factor in her reactions?

Queensland Law Society President Bill Potts. Picture: Annette Dew
Queensland Law Society President Bill Potts. Picture: Annette Dew

Nobody denies that the cases which drove this change to the definition of murder aren't tragic beyond belief, but it is a truism that hard cases make bad law. Similarly, legislative changes driven by emotive factors and populist concerns make bad legislation.

In addition, such legislation almost always carries unintended consequences and treats cases as equally abhorrent even when they are clearly not.

Bashing someone to death over a drug debt or paying an assassin to take out a criminal rival are orders of magnitude worse than a momentary lapse of concentration in a car park - but in Queensland they are seen as the same thing. This is absurd.

Traditionally, effective law involves discretions, usually for judges, for one simple reason: it is impossible to enact laws which can anticipate and deal with every possible scenario.

When a government does attempt to do this the results are often unworkable - witness the Hawke government's three-volume tax legislation - and unfair.

When we are confronted with heinous crimes, it is only natural to become upset, even enraged, and adopt an "off with their heads!" attitude. We want vengeance when little Mason Lee's life and future are taken away by a reprehensible William O'Sullivan, but the law doesn't just apply to that situation.

It applies to a young mother momentarily distracted in a car park, while trying to manage her kids. Are we really happy to criminalise parenting? Who has not been similarly distracted, and do any of us think we should go to jail for this?

Every tragic death lessens us and hurts our community, but there is a distinction between the callous failure of humanity that took Mason Lee's life and a momentary lapse behind the wheel. In Queensland, however, they are equally evil in the eyes of the law.

Those who deliberately commit heinous crimes must of course be punished with a severity that reflects the crime, but if, in our thirst for justice, we also punish those who simply made a tragic mistake, we do so at the cost of our very humanity.

Bill Potts is President of the Queensland Law Society



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