The tragic death of a police officer who was struck by a car last weekend has triggered debate about whether a passenger in a car should be considered legally responsible for the conduct of the driver, and well as raised questions about whether police protocols are consistent with workplace health and safety laws.
53-year old Senior Constable Dave Masters was hit and killed by a stolen car in the early hours of Saturday morning as he was deploying road spikes on Bruce Highway near Burpengary in the Moreton Bay area of Queensland, 35 kilometres from Brisbane, in an attempt to stop the vehicle.
Charged with murder
Police allege that 24-year Kari O’Brien was the passenger of the vehicle at the time, and have charged her with murder, arson and unlawful use of a motor vehicle.
It is alleged the driver was 33-year old Skye Wallis, who was apprehended on Tuesday night and charged with the same offences.
Homicide investigators are working through CCTV footage and conducting forensic tests on the burnt-out Hyundai Kona they believe was used in the hit and run.
According to investigators, the vehicle was rented from Ipswich, west of Brisbane, earlier this month, but was never returned and was later reported stolen.
Police say there were a number of cars on the highway where Officer Dave Masters deployed the spikes, and are calling for witnesses or anyone with dash cam footage to come forward.
Ms O’Brien’s matter has been mentioned in court, and her lawyers made no application for bail.
Bail was formally refused and the matter has been adjourned until August 2021.
Murder of a police officer
In Queensland, the offence of murdering a police officer carries a mandatory sentence of life in prison with a non-parole period of 20 years.
A non-parole period is the minimum term a person must spend behind bars before becoming eligible to apply for conditional release from prison, which is known as ‘parole’ and comes with a range of requirements.
Little information has been released regarding the basis for which the passenger of the vehicle has been charged with murder, and there is debate about whether she should be charged at all – given she was not driving the car.
To establish the offence of murder in Queensland, prosecutors will need to establish that the passenger’s conduct amounted to ‘reckless indifference to human life’ and that such conduct caused the death.
To do this, they will need to prove beyond a reasonable doubt that an act of the passenger was committed with foresight that death would probably arise; in other words, she was aware her action would probably cause death, but she continued regardless.
This is a higher test than mere indifference, and many believe it is something the prosecution will find difficult to prove.
Reckless indifference to human life is also a basis for murder charges in New South Wales.
Murder of a police officer in New South Wales
In New South Wales, the offence of murder carries a maximum penalty of life in prison and a ‘standard non parole period’ (SNPP) of 20 years behind bars.
Life in prison means for the term of a person’s natural life.
An SNPP is a guidepost or reference point for a sentencing judge when he or she is determining the minimum period of time a person must spend in prison before becoming eligible to apply for conditional release on parole.
The SNPP for the murder of a police officer in New South Wales is 25 years in prison.
Workplace Health & Safety
The Queensland Police Forensic Crash Unit and Ethical Standards Command is currently investigating the tragic incident, and is expected to make recommendations in due course regarding the circumstances in which road spikes can be used.
Road spikes are used to impede or stop the movement of wheeled vehicles by puncturing their tires.
Twenty-six QPS Officers have been injured while using tyre-deflating spikes, some of them seriously, including Constable Peter McAulay who was struck by a sedan and dragged several metres in 2018.
He sustained critical head injuries, broken bones, displacement of the brain, spinal injuries and a dislocated knee, and had to be placed in an induced coma for several days.
$1.5 million fine for workplace health and safety breaches
Earlier this year, workplace health and safety prosecutors charged the “Commissioner of Police” — who is responsible for the administration management and functioning of the service — with two counts of failure to comply with health and safety duty Category 2.
The charges carry a maximum penalty of $1.5 million for corporations or $300,000 for individuals.
Under the Queensland Workplace Health and Safety Act, a Category 2 offence is described as a ‘failure to comply with a health and safety duty’.
It applies to ‘a person’ – this can be an individual (e.g. sole trader) or a body corporate (e.g. a corporation). The legislation states that a person commits a category 2 offence if:
- the person has a health and safety duty,
- the person fails to comply with that duty, and
- the failure exposes an individual to a risk of death or serious injury or illness.
Queensland Workplace Health and Safety alleged that between January 2012 and June 2019, the Commissioner of Police knew the deployment of the tyre deflation system was a hazard and a lack of “adequate training” had put police officers and the public at risk of being injured or killed by a car.
In addition to failing to provide practical refresher training, the department also alleged that the Commissioner of Police failed to implement other control measures to “minimise or eliminate risks”, including monitoring and ensuring compliance.
The matter is yet to be finalised, but will return to Brisbane Magistrates Court in several weeks’ time.