You may have seen news of the horror car crash near Newcastle last Sunday.
Police confirmed that at about 2.40am on 22 June, a Commodore sedan and a Hyundai sedan collided on Newcastle Road at North Lambton.
The passenger of the Hyundai vehicle, a 55-year-old woman and the unborn child of the 28-year-old driver, died as a result. The driver also sustained other serious injuries.
The driver of the Commodore and the front seat passenger both allegedly fled the scene, leaving behind not only the 55-year-old and 28-year-old women in the other car, but also two seriously injured teenage girls in their own car.
Two days later, the police arrested a 19-year-old man and charged him with seven offences: aggravated dangerous driving occasioning death; aggravated dangerous driving occasioning grievous bodily harm; three counts of causing bodily harm by misconduct; using a vehicle displaying misleading number plate; and never licensed person driving vehicle on road.
Looking at the long list of charges, one might wonder where the life of the unborn child is recognised.
If baby is in the charges at all, he or she is listed under the charge of “aggravated dangerous driving occasioning grievous bodily harm.”
The inclusion of the death of an unborn child as an offence of grievous bodily harm against the child’s mother is the result of a 2005 law passed in NSW.
That law recognised “the close physical bond between a pregnant woman and her unborn child” meant that “the loss of the unborn child can amount to grievous bodily harm to a pregnant woman—even where the woman suffers no other injury.”
It was passed following the tragic death of Byron, the unborn son of Renee Shields. Byron had died when the car in which Renee was a passenger was hit from behind and pushed into a power pole in an incident of road rage.
While the perpetrator was charged and imprisoned for the injuries to Renee, causing Byron’s death did not count as a crime.
Renee’s brave campaigning for a change to the law saw the first small step to recognising the life of the unborn child in the law. And while this was a positive first step in our criminal law, its insufficiency was highlighted less than five years after it was made law.
On Christmas Day 2009, Zoe, the unborn daughter of Brodie Donegan, was killed when Brodie was struck by a drug-affected driver. As a result of the 2005 change in law, the driver was charged with grievous bodily harm against Brodie because the accident had resulted in the death of Zoe.
But this was of little consolation, because it still failed to recognise Zoe’s life as distinct from Brodie’s. The deficiency in the law prompted Brodie to mount a decade-long campaign to see the law changed once again.
This campaign was finally successful in November 2021 when two offences relating to causing the loss of a foetus were added to the Crimes Act 1900. The new law said that if a person committed an offence that amounted to grievous bodily harm and that included the loss of a foetus, then they could be charged separately for the death of that baby.
It also allowed for members of the mother’s immediate family to provide victim impact statements and for the baby’s name to be recorded in the list of charges.
However, the law only applies for unborn babies of 20 weeks’ gestation or more. Babies younger than that are still covered under the grievous bodily harm provisions. Police reports have not specified how many weeks’ along the mother was, but given the lack of charges, it suggests that she was not yet halfway through.
While the 2021 change to the law was a good second step in recognising the humanity of unborn children and the devastation that the loss of a child can cause to its parents and extended family, last Sunday’s tragic accident has once again highlighted a gap in the law and demonstrated there is still a long way to go.
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While recovery is the first priority for this young mother, I wouldn’t be surprised if she—like Brodie Donegan before her and Renee Shields before that—begins to ask for the law to be changed again.
It would be good if our MPs could do this of their own initiative, instead of being begged for years by a series of grieving mothers who deserve better than that.