Skye’s Law: why failing to stop for police is charged separately, and why a second offence means mandatory prison
It is almost never a decision. The lights come on behind you, and in the two seconds available you panic – because you are unlicensed, because there is something in the car, because you have been drinking, because you are already on bail. You keep driving. Maybe only for a few hundred metres. Maybe you pull over thirty seconds later.
Those few seconds create a standalone criminal offence that is treated far more seriously than almost anything else you might have been stopped for. Police pursuit under section 51B – known as Skye’s Law – carries three years for a first offence and five for a second or subsequent one, and the second offence attracts a mandatory minimum period of imprisonment.
What the offence requires
The offence is created by section 51B of the Crimes Act 1900 (NSW)). The prosecution must prove that the driver knew, ought reasonably to have known, or had reasonable grounds to suspect that police were pursuing the vehicle and that they were required to stop; that the driver did not stop; and that the driver then drove the vehicle recklessly, or at a speed or in a manner dangerous to others.
Three features are worth drawing out. First, knowledge can be established objectively – ought reasonably to have known is enough, so a genuine claim of not noticing must be tested against what a reasonable driver would have perceived. Second, there is no minimum distance or duration. A short failure to stop can satisfy the section. Third, and most importantly, simply failing to stop is not the offence. The driving after the failure to stop must independently be reckless, or at a dangerous speed, or in a dangerous manner.
That third element is where the defence usually lives. A driver who continued at ordinary speed, obeyed traffic signals and pulled over shortly afterwards has not necessarily driven dangerously merely because they did not stop immediately. The Crown must prove the manner of driving, and body-worn and in-car police footage frequently shows something less dramatic than the fact sheet describes.
Why it is treated so seriously
The provision was introduced following the death of a young child in a pursuit-related collision, and it reflects a legislative judgement that pursuits create extreme risk to the public, to police and to the driver. That legislative context runs through the sentencing authorities, and general deterrence is given substantial weight.
The consequences beyond the sentence reinforce it. A section 51B offence is a never-eligible offence under section 221A of the Road Transport Act 2013), meaning the resulting disqualification can never be removed under the disqualification removal scheme. Automatic disqualification applies, and the vehicle may be subject to sanctions including confiscation.
The mandatory minimum
For a second or subsequent offence, the maximum rises to five years and a mandatory minimum period of imprisonment applies. That is a significant departure from the ordinary sentencing discretion, and it means the alternatives to full-time custody that would otherwise be available under the framework we set out in our guide to primary sentencing outcomes in NSW are not open in the same way.
Whether a prior offence properly counts as a first offence for these purposes is therefore a question of real consequence, and it is one that should be examined carefully rather than assumed.
What else gets charged
Almost always more than the pursuit itself. Whatever prompted the stop will be charged – unlicensed or disqualified driving, drink or drug driving, or the possession matters found on the subsequent search. Predatory driving under section 51A may be alleged where another vehicle was involved. Where a collision occurred, dangerous driving offences under section 52A follow, and driving to escape police pursuit is itself a circumstance of aggravation under that section.
Where the original stop related to alcohol, the interaction with the interlock scheme matters, as our article on high-range drink driving and the mandatory interlock scheme explains. And where the driving was filmed or posted, that material becomes evidence of both the offence and its seriousness – the same dynamic we describe in our article on how police use social media in car culture prosecutions.
What the evidence in a pursuit case actually consists of
More than most people expect, and much of it is objective. NSW Police operate under a formal pursuit policy governing when a pursuit may be initiated, how it must be communicated to the radio operator, and when it must be terminated. That means there is almost always a contemporaneous audio record – the pursuing officer describing the vehicle, the speed, the road conditions and the reason for the pursuit, in real time.
That record cuts both ways. It supports the Crown where an officer describes extreme speeds and erratic manoeuvres. It undermines the Crown where the transmission describes a vehicle travelling at or near the limit, or where the pursuit was terminated within seconds because the risk was assessed as low. In-car video, body-worn footage, ANPR hits and, increasingly, aerial footage all form part of the same picture.
Because so much of it is generated automatically, this material must be sought early and specifically. Radio logs and in-car footage are subject to retention periods, and a request made months later may return nothing. It is one of the clearest examples in NSW criminal practice of evidence that decides cases being lost through delay rather than through any decision by anyone.
Where the defences are
Knowledge is the first. Where police were unmarked, sirens were not activated, the pursuit began at distance, or conditions genuinely obscured perception, whether the driver knew or ought reasonably to have known is a real question.
The manner of driving is the second and the most productive. The Crown must prove recklessness or dangerous speed or manner, and in-car video, GPS data and independent footage frequently establish that the driving, while unlawful, did not meet that threshold. Where it does not, the matter may resolve to failing to stop under the Road Transport Act – a very different proposition.
Identification is the third, particularly where the vehicle was located later and the driver was not seen. Duress and necessity are available in genuinely exceptional circumstances, though rarely.
Where a matter resolves favourably or charges are withdrawn, costs may be recoverable, as our guide to costs in NSW criminal cases explains. And where a Local Court outcome is too severe, a District Court appeal remains available, as our article on severity appeals in NSW and our case study on a District Court appeal producing a non-conviction in a serious traffic matter both show.
If it has already happened
Do not participate in an interview before getting advice. The questions will be directed at establishing that you knew police were behind you and that you chose to keep going, and an explanation offered to justify the panic supplies both elements at once.
Do preserve any footage from your own vehicle, and do get advice about obtaining the police in-car and body-worn footage early. Traffic offending remains a high-volume area in NSW courts, tracked in BOCSAR’s quarterly recorded crime statistics), and pursuit matters are prosecuted consistently and without much appetite for negotiation unless the manner of driving element is genuinely weak.
Contact Us
A few seconds of panic can produce a charge carrying mandatory imprisonment on a second offence and a disqualification that can never be removed. But the offence has three elements, not one, and the requirement that the driving itself be reckless or dangerous is frequently the weakest part of the Crown case.
At National Criminal Lawyers, we defend police pursuit, predatory driving and serious traffic charges across NSW. We obtain and analyse the in-car and body-worn footage, test the manner of driving element properly, and pursue resolution to a lesser charge where the evidence supports it.
Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.
