South Australian Current Acts South Australian Current Acts5D—Liability for certain offences from vehicles
(1) If—
(a) an
activity is carried on—
(i)
in, at or from a vehicle; or
(ii)
in connection with the use of a vehicle; and
(b) the
activity results in a principal offence,
the owner of the vehicle is guilty of an offence against this section and is
liable to the same penalty as is prescribed for the principal offence and the
expiation fee (if any) that is fixed for the principal offence also applies in
relation to the offence against this section.
(2) However, the owner
of a vehicle and the person who committed the
principal offence (the "alleged principal offender") are not both liable
through the operation of this section to be found guilty of, or to expiate, an
offence arising out of the same circumstances, and consequently a finding of
guilt in relation to, or expiation by, the owner exonerates the
alleged principal offender and conversely a finding of guilt in relation to,
or expiation by, the alleged principal offender exonerates the owner.
(3) 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 alleged principal offender, to provide the
issuing authority specified in the notice, within the period specified in the
notice, with a statutory declaration—
(a)
setting out the name and address of the person who the owner believes to have
been the alleged principal offender; or
(b) if
he or she had transferred ownership of the vehicle to another prior to the
time of the alleged principal offence and has complied with the
Motor Vehicles Act 1959 or the Harbors and Navigation Act 1993 (as
the case may require) in respect of the transfer—setting out details of
the transfer (including the name and address of the transferee).
(4) If the vehicle is
owned by 2 or more persons—
(a) a
prosecution for an offence against this section may be brought against 1 of
the owners or against some or all of the owners jointly as co-defendants; and
(b) if
the case for the prosecution is proved and a defence is not established, the
defendant or each of the defendants who does not establish a defence is liable
to be found guilty of an offence against this section.
(5) Before proceedings
are commenced against the owner of a vehicle for an offence against this
section, the informant must send the owner a notice—
(a)
setting out particulars of the alleged principal offence; and
(b)
inviting the owner, if he or she was not the alleged principal offender or the
owner of the vehicle at the time of the alleged principal offence, to provide
the informant, within 21 days of the date of the notice, with a statutory
declaration setting out the matters referred to in subsection (3)(a) and
(b).
(6)
Subsection (5) 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 alleged principal offender.
(7) Subject to
subsection (8), 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 commission of the alleged
principal offence; or
(b) that
the owner provided the informant with a statutory declaration in accordance
with an invitation under this section.
(8) The defence in
subsection (7)(b) does not apply if it is proved that the owner made the
declaration knowing it to be false in a material particular.
(9) 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 such a person,
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.
(10) The particulars
of the statutory declaration provided to the alleged principal offender must
not include the address of the person who provided the statutory declaration.
(11) 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 present in or at the vehicle at
the time at which the alleged principal offence was committed.
(12) In proceedings
against the owner of a vehicle or the alleged principal offender for an
offence against this Act, an allegation in the information 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.
(13) For the purposes
of this section, an activity consisting of the
disposal of waste or other matter to the environment will be presumed, in the
absence of proof to the contrary, to have been carried on in connection with
the use of a vehicle if the waste or matter has been disposed of to the
environment and the vehicle was seen arriving at the place of disposal before
the disposal or leaving that place after the disposal.
(14) This section does
not apply in relation to the disposal of waste or other matter by a passenger
of a taxi or a train, tram, bus, ferry, passenger ship, or other public
transport vehicle, that was being used for a public purpose at the time.
(15) In this
section—
"owner" of a vehicle—
(a) in
the case of a vessel within the meaning of the Harbors and Navigation
Act 1993 , has the same meaning as in section 4(1) of that Act, and
includes the operator of the vessel within the meaning of that Act;
(b) in
the case of a vehicle within the meaning of the Road Traffic Act 1961 ,
has the same meaning as in section 5(1) of that Act, and includes the
operator of the vehicle within the meaning of that Act;
"principal offence" means—
(a) an
offence against section 34 (contravening a mandatory provision of an
environment protection policy); or
(b) an
offence against—
(i)
Part 8 Division 2; or
(ii)
Part 9; or
(c) an
offence prescribed by regulation.