73A—Liability of vehicle owners and expiation of certain offences
(1) In this
section—
"owner", in relation to a vehicle, includes—
(a) a
person registered or recorded as an owner of the vehicle under a law of this
State or of the Commonwealth or another State or Territory of the
Commonwealth; and
(b) a
person to whom a trade plate, a permit or other authority has been issued
under the Motor Vehicles Act 1959 or a similar law of the Commonwealth or
another State or Territory of the Commonwealth, by virtue of which the vehicle
is permitted to be driven on roads; and
(c) a
person who has possession of the vehicle by virtue of the hire or bailment of
the vehicle;
"prescribed offence" means an offence against a provision of this Act
prescribed by regulation for the purposes of this definition;
"principal offender" means a person who has committed a prescribed offence.
(2) Without derogating
from the liability of any other person, but subject to this section, if a
vehicle is involved in a prescribed offence, the owner of the vehicle is
guilty of an offence and liable to the same penalty as is prescribed for the
principal offence and the expiation fee that is fixed for the principal
offence applies in relation to an offence against this section.
(3) Where there are
two or more owners of the same vehicle a prosecution for an offence against
subsection (2) may be brought against one of the owners or against some
or all of the owners jointly as co-defendants.
(4) The owner of a
vehicle and the principal offender are not both liable through the operation
of this section to be convicted of an offence arising out of the same
circumstances, and consequently conviction of the owner exonerates the
principal offender and conversely conviction of the principal offender
exonerates the owner.
(5) An expiation
notice or expiation reminder notice given under the Expiation of Offences
Act 1996 to the owner of a vehicle for an alleged offence against this
section involving the vehicle must be accompanied by a notice inviting the
owner, if he or she was not the principal offender, to provide the person
specified in the notice, within the period specified in the notice, with a
statutory declaration—
(a)
setting out the name and address of the principal offender; or
(b) if
he or she had transferred ownership of the vehicle to another prior to the
time of the alleged offence and, in the case of a motor vehicle defined by
section 5(1) of the Road Traffic Act 1961 , has complied with the
Motor Vehicles Act 1959 in respect of the transfer—setting out
details of the transfer (including the name and address of the transferee).
(6) Before proceedings
are commenced against the owner of a vehicle for an offence against this
section involving the vehicle, the complainant must send the owner a
notice—
(a)
setting out particulars of the alleged prescribed offence; and
(b)
inviting the owner, if he or she was not the principal offender, to provide
the complainant, within 21 days of the date of the notice, with a statutory
declaration setting out the matters referred to in subsection (5).
(7)
Subsection (6) does not apply to—
(a)
proceedings commenced where an owner has elected under the
Expiation of Offences Act 1996 to be prosecuted for the offence; or
(b)
proceedings commenced against an owner of a vehicle who has been named in a
statutory declaration under this section as the principal offender.
(8) Where a person is
found guilty of, or expiates, a prescribed offence or an offence against this
section, neither that person nor any other person is liable to be found guilty
of, or to expiate, an offence against this section or a prescribed offence in
relation to the same incident.
(9) Subject to
subsection (10), in proceedings against the owner of a vehicle for an
offence against this section, it is a defence to prove—
(a)
that, in consequence of some unlawful act, the vehicle was not in the
possession or control of the owner at the time of the alleged prescribed
offence; or
(b)
that—
(i)
the driver or operator of the vehicle was not the
principal offender or one of the principal offenders; and
(ii)
the owner does not know and cannot reasonably be expected
to know the identity of the principal offender or of any one of the
principal offenders; or
(c)
that, at the time of the alleged prescribed offence, the vehicle was being
used for a commercial purpose; or
(d) that
the owner provided the complainant with a statutory declaration in accordance
with an invitation under this section.
(10) The defence in
subsection (9)(d) does not apply if it is proved that the owner made the
declaration knowing it to be false in a material particular.
(11) If—
(a) an
expiation notice is given to a person named as the alleged principal offender
in a statutory declaration under this section; or
(b)
proceedings are commenced against a person named as the alleged
principal offender in such a statutory declaration,
the notice or summons, as the case may be, must be accompanied by a notice
setting out particulars of the statutory declaration that named the person as
the alleged principal offender.
(12) In proceedings
against a person named in a statutory declaration under this section for the
offence to which the declaration relates, it will be presumed, in the absence
of proof to the contrary, that the person was the principal offender.
(13) In proceedings
against the owner or the principal offender for an offence against this Act,
an allegation in the complaint that a notice was given under this section on a
specified day will be accepted as proof, in the absence of proof to the
contrary, of the facts alleged.
(14) A vehicle will be
taken to be involved in a prescribed offence for the purposes of
subsection (2) if it was used in, or in connection with, the commission
of the offence.
(15) Without limiting
subsection (14), a vehicle will be taken to be used in connection with
the commission of an offence if it is used to convey the principal offender or
equipment, articles or other things used in the commission of the offence to
the place where, or to the general area in which, the offence was committed.