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Supreme Court of Victoria |
![[AustLII]](439.1.gif)
Supreme Court of VictoriaLast Updated: 22 August 2013
IN THE MATTER of Section 272
of the Criminal Procedure Act 2009
and
IN THE MATTER of the
Road Safety Rules 2009
BETWEEN
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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DATE OF JUDGMENT:
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CASE MAY BE CITED AS:
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MOTOR VEHICLES – Appeal from Magistrates’ Court –
Appellant convicted of offence of driving with breath alcohol
content in excess
of prescribed limit – Road Safety Act 1986 (Vic) s 49(1)(f)
– Whether appellant ‘in charge of vehicle’ – Appellant
asleep in driver’s seat with engine running
– Vehicle stopped, gear
in park – Construction of Road Safety Act ss 3AA(1), 48(1)(b)
– Erroneous view of magistrate as to construction – Whether
conviction nevertheless should stand – Whether
case should be remitted for
rehearing.
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APPEARANCES:
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Counsel
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Solicitors
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For the Appellant
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Mr S Hardy
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Thexton Lawyers
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For the Respondent
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Mr T Gyorffy SC
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The Solicitor for Public Prosecutions
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1 This is an appeal from a decision of the Magistrates’ Court at Moorabbin
of 29 October 2012. By that decision, the magistrate
found the appellant
guilty of an offence against s 49(1)(f) of the Road Safety Act 1986
(‘the Act’), fined the appellant $500, cancelled his licence, and
disqualified the appellant from holding any licence
to drive a motor vehicle for
a period of 24 months.
2 Section 49(1)(f) of the Road Safety Act
provides:
(1) A person is guilty of an offence if he or she –
...
(f) within three hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under s 55 and –
(i) the result of the analysis as recorded or shown by the breath analysing instrument indicates that the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her breath; and
(ii) the concentration of alcohol indicated by the analysis to be present in his or her breath was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle.
3 The question in the appeal is whether the magistrate erred, in law, in finding
that, at the relevant time, the appellant was ‘in
charge of’ a motor
vehicle.
4 The only witness who gave evidence at the Magistrates’ Court
was the informant, Acting Sergeant Mark Kershaw, of the Oakleigh
Police Station.
Sergeant Kershaw stated that on 10 January 2012 he received a telephone call to
attend a green Commodore sedan which
was parked in Huntingdale Road,
Huntingdale. When Sergeant Kershaw arrived, the vehicle was parked out the
front of a shopping strip
in Huntingdale Road. He approached the vehicle, and
he noted that the engine was running, and that the driver, the appellant, was
in
the driver’s seat slouched over the steering wheel.
5 Sergeant
Kershaw knocked on the window to attract the appellant’s attention. He
had to knock several times. After seven
to ten minutes’ delay, the
appellant sat up and opened the car door. He appeared somewhat disorientated.
Sergeant Kershaw
noticed that the gear of the vehicle was in ‘park’,
but that the hand brake was off. Although the engine was running,
the radio was
not turned on, and neither the heating nor the cooling of the car was on.
Sergeant Kershaw asked the appellant to
turn off the engine, but the appellant
did not do so, and Sergeant Kershaw himself turned off the ignition. Sergeant
Kershaw asked
the appellant how long he had been there. The appellant said that
he had not been there for long. Sergeant Kershaw then requested
him to undergo
a preliminary breath test. That test was duly administered, and returned a
positive reading. At Sergeant Kershaw’s
request, the appellant then
accompanied him to the Oakleigh Police Station. There the appellant furnished a
sample of his breath
for analysis by a breath analysing instrument. The result
of that test indicated that the appellant’s blood alcohol content
was
0.266 grams of alcohol per 210 litres of breath.
6 In cross-examination, it
was put to Sergeant Kershaw that, although the appellant stated that he had only
just arrived at the location,
he had not in fact just got there, ‘because
he was asleep’. In response to that question, Sergeant Kershaw is
recorded
as responding ‘Mm’hm’. Later in cross-examination,
it was put to Sergeant Kershaw that he had no idea how long
the appellant
‘had been there asleep’. To that Sergeant Kershaw responded,
‘I don’t give an exact time,
no’.
7 In re-examination,
Sergeant Kershaw clarified that answer. He said that when he approached the
vehicle, the appellant was slouched
with his arm across the steering wheel, and
his head was down. Sergeant Kershaw said ‘I couldn’t say that he
was asleep
but that’s the way he appeared to be’.
8 Based on
that evidence, the magistrate was satisfied that the appellant was in charge of
the vehicle at the relevant time, and his
Honour accordingly found the appellant
was guilty of the offence charged under s 49(1)(f) of the Act.
Road Safety Act 1986 s 3AA(1), s 48(1)(b)
9 Section 3AA(1) of the Act provides:
(1) Without limiting the circumstances in which a person is in charge of a motor vehicle, the following persons are taken to be in charge of a motor vehicle for the purposes of this Act –
(a) a person who is attempting to start or drive the motor vehicle;
(b) a person with respect to whom there are reasonable grounds for the belief that he or she intends to start or drive the motor vehicle;
(c) a commercial driving instructor while the person whom he or she is teaching to drive is driving or in charge of the vehicle;
(d) an accompanying licensed driver while the person whom he or she is sitting beside is driving or in charge of the vehicle.
10 Section 49 comes within Part 5 of the Act. Section 48, which is within the same Part, provides:
(1) For the purposes of this Part –
...
(b) a person is not to be taken to be in charge of a motor vehicle unless that person is a person to whom section 3AA(1)(a), (b), (c) or (d) applies.
The grounds of appeal
11 In the Notice of Appeal, the appellant relies on two grounds, namely:
(1) That the magistrate erred in law in finding that the respondent found the appellant in charge of a vehicle at the time when the appellant was asleep.
(2) The magistrate erred in his interpretation and application of s 48(1)(b) of the Act, and wrongly convicted the appellant on the charge under s 49(1)(f) of the Act.
12 The grounds of appeal, and the competing submissions, raise an issue as to
the basis upon which the magistrate was satisfied that
at the relevant time the
appellant was in charge of the vehicle. The primary submission on behalf of the
appellant was that the
magistrate failed to interpret s 48(1)(b) of the Act
correctly, and that his Honour relied on the opening words of s 3AA(1),
which state ‘Without limiting the circumstances in which a person is in
charge of a motor vehicle ...‘ Thus, it was
submitted that the magistrate
wrongly proceeded on the basis that the four categories, specified in
s 3AA(1)(a), (b), (c) and (d), are not an exhaustive list of the
circumstances in which a person might be taken to be in charge of a motor
vehicle.
13 On the other hand, it was submitted on behalf of the respondent
that the decision of the magistrate was based on a finding that
the facts of the
case came within subparagraph (b) of s 3AA(1), namely, the appellant was a
person with respect to whom there were reasonable grounds for the belief that he
intended to start or
drive the motor vehicle. It was submitted on behalf of the
respondent that there were reasonable grounds for the belief that the
appellant
was intending to drive the motor vehicle, and that therefore the magistrate did
not err in finding that the appellant was
in charge of the vehicle at the
relevant time.
14 It is therefore necessary to determine the particular
basis upon which the magistrate was satisfied that the charge against the
appellant was proven.
15 At the conclusion of the evidence of Sergeant Kershaw, counsel for the appellant unsuccessfully made a no case submission on behalf of his client. The magistrate did not uphold that submission. Counsel for the appellant, and the prosecutor, each made further submissions. The magistrate then stated his conclusions in short form as follows:
In this matter I accept the prosecution’s submissions about the manner in which the evidence should be interpreted; the evidence that the accused was awake at the time that the informant knocked on the window. When that is added to the fact that the vehicle engine was running at that time I find it sufficient to constitute that he was in charge of the vehicle at that time and the offence made out.
16 In order to understand precisely what the magistrate thus decided, it is
necessary to consider, in a little detail, what passed
between the magistrate
and counsel in the course of submissions.
17 As I stated, at the conclusion
of the evidence, counsel for the appellant made a ‘no case’
submission. Counsel’s
submissions focused on subparagraph (b) of the
definition in s 3AA(1) of the Act. He submitted that in order to be in
charge of the motor vehicle, the accused had to be found in circumstances where
it was reasonable to believe that he intended to start or drive the vehicle. He
submitted that in this case such a belief could
not have been held by the
informant, because the appellant was asleep in his vehicle when he was
approached by the informant. Counsel
then took the magistrate to a number of
authorities, to which I shall later refer. Having done so, he submitted that
the prosecution
needed to prove that, when the informant found the appellant,
‘he was about to start or drive the car’, and he submitted
that
there was no evidence before the court to support that conclusion.
18 In
response, the prosecutor submitted that there was evidence that the informant
had reasonable grounds for forming a belief that
the respondent was about to
start or drive the car. In particular, he referred to the evidence of Sergeant
Kershaw of receiving
the phone call, attending the car park, and observing the
respondent there. The prosecutor submitted that the informant was entitled
to
base part of his reasonable grounds on the communication which he had received
by the telephone. The magistrate interjected that
he did not understand counsel
for the appellant to be challenging the administration of the preliminary breath
test. Counsel for
the appellant responded by contending that there was no
evidence to support a reasonable belief that the appellant at the relevant
time
was in charge of the vehicle, because he was found asleep.
19 In response,
the prosecutor submitted that the magistrate could conclude that the appellant
was in charge of the vehicle, because
when he had ‘woken up’ he was
seated in the driver’s seat of the vehicle with the engine running, and he
was then
in a position of control of the vehicle. In an ensuing interchange
with the prosecutor, the magistrate observed that ‘there
doesn’t
appear to be much doubt that he was asleep’. The prosecutor concurred
with that observation. The magistrate
expressed the view that the essential
issue was whether someone who was found asleep in those circumstances could be
regarded as
being in charge of the vehicle.
20 The magistrate then stood
the matter down to enable the prosecutor to conduct some research. When the
matter resumed, the prosecutor
submitted that the four circumstances, specified
in s 3AA(1) of the Act, were not exhaustive. In support of that
submission, he relied on the opening words to the section.
21 In response,
counsel for the appellant then drew the attention of the magistrate to
s 48(1)(b) of the Act which, he submitted, had the effect that a person is
not to be taken to be in charge of a motor vehicle, unless that person
is a
person to whom subparagraphs (a), (b), (c) or (d) of s 3AA(1) applied.
There then followed a discussion between the magistrate and counsel relating to
that submission. Following that discussion,
the magistrate concluded:
I don’t read that section in the same manner as you do, [counsel for the appellant], and I accept the prosecution’s submission that the words ‘without limiting the circumstances’ be given [indistinct] meaning and I accept the submission as to what meaning it should be given and find that on the evidence given to date there is a case to answer taken at its highest.
22 Pausing there, it is clear that the magistrate proceeded on the basis that,
notwithstanding s 48(1)(b) of the Act, a person may be taken to be in
charge of a vehicle, for the purposes of s 49, although that person did not
come within subparagraphs (a), (b), (c) or (d) of s 3AA(1) of the Act.
23 After the magistrate rejected the no case submission, counsel announced
that he would not be calling evidence. The magistrate
heard further submissions
from the parties. The prosecutor submitted that once the police officer knocked
on the window, the appellant
awoke, if it is to be accepted that he was asleep
in any event. He submitted that thus the appellant was awake when the vehicle
was running, he was seated in the driver’s seat, and that therefore he was
in charge ‘at that particular point of time,
even if it was for the
officer knocking on the window’. Counsel for the appellant interjected
and objected that that was not
how the case had been put against his client. It
was following that interchange that the magistrate announced his decision in the
terms which I have set out in paragraph 15 above.
24 In that context, three
matters are clear from the magistrate’s decision. First, his Honour
proceeded on the basis that it
was not necessary for him to find that the case
came within any of subparagraphs (a) to (d) of s 3AA(1) of the Act, in
order to be satisfied that the appellant was in charge of the vehicle.
Secondly, the magistrate accepted that when
Sergeant Kershaw approached the
Commodore and knocked on its window, the appellant was then asleep. Thirdly,
the magistrate’s
decision was based on a finding that the appellant, when
woken by the informant knocking on his window, was in charge of the vehicle.
The magistrate based that conclusion on the fact that the appellant was then
awake in the driver’s seat, and that the vehicle
engine was running.
25 For those reasons, I do not accept the submission, made on behalf of the
respondent, that the magistrate based his conclusion,
that the appellant had
been in charge of the vehicle, on a finding that the appellant came within
subparagraph (b) of s 3AA(1) of the Act, namely, that he was a person with
respect to whom there were reasonable grounds for the belief that he intended to
start
or drive the vehicle. In particular the magistrate did not purport to
make any finding as to the belief, or otherwise, of the informant,
Sergeant
Kershaw, as to that matter, nor as to whether such belief was reasonable.
Rather, and on the contrary, the magistrate specifically
ruled that, in
determining whether he was satisfied that the appellant had been in charge of
the vehicle, he was not constrained
to confine his consideration to the question
whether the appellant’s circumstances came within any of the four
categories specified
in s 3AA(1)(a) to (d) of the Act.
Ground 2 of the grounds of appeal: interpretation of s 48(1)(b) of the Act
26 That analysis of the magistrate’s reasons enlivens ground 2 of the
Notice of Appeal. In particular, Mr Hardy, on behalf
of the appellant, has
submitted that the magistrate erred in holding that the opening words of
s 3AA(1) (‘without limiting the circumstances in which a person is in
charge of a motor vehicle ...‘) has the effect that a person
may be held
to be ‘in charge of’ a motor vehicle, for the purposes of an offence
against s 49(1)(f) of the Act, notwithstanding that the circumstances of
the case do not come within subparagraphs (a) to (d) of s 3AA(1).
Mr Hardy submitted that the clear purpose of s 48(1)(b) of the Act is
to narrow the circumstances in which a person is taken to be in charge of a
vehicle for the purposes of Part 5 of the Act. It achieves that purpose by
finding the ambit of the phrase ‘in charge of a vehicle’, for the
purposes of
Part A, to the four circumstances specified in subparagraphs (a) to
(d) of s 3AA(1). Mr Hardy submitted that the interpretation adopted
by the magistrate ignores, and renders otiose, s 48(1)(b) of the Act.
27 The submissions made by Mr Hardy are clearly correct, both as a
matter of statutory interpretation, and by way of authority. Mr
Gyorffy
SC, who appeared on behalf of the respondent, did not contend to the
contrary.
28 The terms of s 48(1)(b) are clear and unequivocal. By its
express terms, s 48(1)(b) specifically provides that, for the purposes of
Part 5 of the Act, a person is not to be taken to be in charge of a vehicle
unless that person is a person to whom subparagraphs (a) to
(d) of s 3AA
applies. There is no warrant for construing s 48(1)(b) other than
according to its plain terms.
29 The construction of s 48(1)(b),
contended for on behalf of the appellant, is consistent with the history of that
provision. Section 48(1)(b) of the Act was amended, and s 3AA(1) was
introduced into the Act, by the Road Safety (Further Amendment) Act
2001.[1]
Previously, s 48(1)(b) had itself provided as follows:
a person is not to be taken to be in charge of a motor vehicle unless that person is attempting to start or drive the motor vehicle or unless there are reasonable grounds for the belief that that person intends to start or drive the motor vehicle.
30 The amending Act in 2001 substituted the words, ‘a person to whom
s 3AA(1)(a), (b), (c) or (d) applies’ for the words
‘attempting
to start or drive the motor vehicle or unless there are reasonable grounds for
the belief that that person intends
to start or drive the motor vehicle’.
Thus, it is clear that the 2001 amendments were not intended to alter the
definition
of the phrase ‘in charge of a motor vehicle’ for the
purposes of Part 5. Rather, the intention of the amending statute
was to retain
the existing definition of that phrase for the purposes of offences under Part 5
of the Act.
31 That construction of s 48(1)(b) of the Act does not
deprive the introductory words of s 3AA(1) (‘without limiting the
circumstances
in which a person is in charge of a motor vehicle ...’) of
any useful purpose. Rather, s 17 of the 2001 Act introduced a series
of
duties of a person ‘in charge of’ a vehicle, by amending s 59
of the Act, to impose those duties, not only on drivers
of a vehicle, but also
on persons in charge of a vehicle. The opening words of s 3AA(1) are
applicable in determining whether a
person is ‘in charge of’ a
vehicle for the purposes of that amended provision.
32 The construction of
s 48(1)(b) contended for by the appellant, and which I accept, is supported
by the decision of Bell J in Director
of Public Prosecutions v
Farmer.[2]
In that case, the respondent had been charged with refusing to undergo a
preliminary breath test. The question was whether, at the
relevant time, the
respondent was a person in charge of the vehicle. In respect of
s 48(1)(b), Bell J stated:
For the purposes of Part 5, which include s 53, s 48(1)(b) provides that a person is not to be taken to be in charge of a motor vehicle unless the definition in s 3AA(1)(a), (b), (c) or (d) applies. Section 48(1c) (sic) thus makes the definition in paragraphs 3AA(1)(a), (b), (c) and (d) an exclusive code for the purpose of determining when a person is in charge of a motor vehicle under s 53(1)(a).[3]
33 Bell J then set out s 3AA(1) in full, and stated:
By reason of s 48(1)(b), when applying this definition to Part 5, the opening words of s 3AA(1) do not apply. Therefore, when determining whether a person is required by s 53(1)(a) to undergo a preliminary breath test by reason of being in charge of a vehicle, the question is whether they are to be taken to be in charge by reason of the application of paragraphs (a), (b), (c) or (d) of the definition.[4]
34 Thus, in determining whether he was satisfied that the appellant was
‘in charge of’ the vehicle for the purposes of
s 49(1)(b) of
the Act, the magistrate was obliged to, but did not, consider whether he was
satisfied that the case came within one
of the four categories of circumstances
specified in subparagraphs (a) to (d) of s 3AA(1) of the Act. Instead of
doing so, the magistrate
considered that he was not bound to determine whether
the case fell within one of those four categories, but, rather, he concluded
that the appellant was ‘in charge of’ the vehicle because, when he
woke up, he was in the driver’s seat, with the
engine running. That
conclusion does not, alone and without more, bring the case within any of the
categories specified in subparagraph
(a) to (d) of s 3AA(1). In that way, with
respect, the magistrate made an error of law.
35 As I have noted,
Mr Gyorffy, on this appeal, did not contend that the magistrate had
correctly construed s 3AA(1) of the Act.
Rather, the principal question on
appeal concerned whether that error should lead to an order setting aside the
appellant’s
conviction by the magistrate, and, secondly, if so, whether
the case should be remitted to the Magistrates’ Court for rehearing.
Submissions as to effect of magistrate’s error
36 Mr Hardy, who appeared for the appellant, submitted that, on the
evidence before him, the magistrate was bound to rule in favour
of the appellant
on the ‘no case’ submission. Mr Hardy submitted that there was
no evidence, at all, that the respondent
had formed any belief that the
appellant intended to start or drive the vehicle. On the contrary, he
submitted, the respondent’s
evidence was that he required the appellant to
undergo a preliminary breath test because the appellant had told him that he had
‘just
got there’. In this respect, Mr Hardy referred to a
number of authorities, including DPP v
Farmer,[5] Gillard v
Wenborn,[6] and Woods v
Gamble.[7] He submitted that the effect of those
authorities is that, in order to establish that the appellant was in charge of
the vehicle
at the relevant time on the basis of subparagraph (b) of the
definition contained in s 3AA(1), the respondent was required to, but
did
not, give evidence as to his belief that the appellant intended to start or
drive the vehicle, and as to the basis for such a
belief. Relying on those
authorities, Mr Hardy further contended that the fact that the appellant
was asleep, when the respondent
found him, precluded a conclusion that the
respondent could have formed the belief that the appellant, then, intended to
start or
drive the vehicle. Thus, Mr Hardy submitted that the correct
disposition of this appeal is to allow the appeal, and to quash the
appellant’s conviction. Mr Hardy submitted that I should not remit
the case for rehearing, because, on any view, the appellant
could not be
convicted of being in charge of the vehicle. Mr Hardy, again, submitted
that that conclusion must follow from the fact
that the respondent found the
appellant asleep in the vehicle.
37 On the other hand, Mr Gyorffy
submitted that, on the evidence adduced before the magistrate, his Honour could
have reached no other
conclusion than that the respondent believed, on
reasonable grounds, that the appellant intended to drive the vehicle.
Mr Gyorffy
submitted that it was implicit in the respondent’s
evidence that, when he came upon the appellant’s vehicle, he then
believed
that the appellant was about to drive the vehicle. Mr Gyorffy submitted,
further, that the respondent had reasonable grounds
for reaching that
conclusion. In particular, Mr Gyorffy submitted that those matters were to
be implied from a number of facts,
including: the police received an anonymous
telephone call about the appellant’s vehicle in Huntingdale Road,
Huntingdale;
when the respondent attended, the engine of the vehicle was
running, and the appellant was seated in the driver’s seat, slouched
over
the steering wheel; the vehicle’s gear was in park, but the handbrake was
off, the radio was not turned on, and no heating
or cooling was operating in the
car; accordingly there was no other reason why the engine of the vehicle was
then running, other
than so that the vehicle could be driven off; when the
appellant was asked to turn off the ignition, he did not do so, and so the
informant was required to turn it off; and the appellant said to the informant
that he had not been at that location for long. Mr
Gyorffy submitted that
those facts gave rise to the clear implication that the respondent did form the
belief, on reasonable grounds,
that the appellant intended to drive the vehicle.
In those circumstances, Mr Gyorffy submitted that the magistrate was not
only entitled,
but that he was obliged, to be satisfied beyond reasonable doubt
that, at the time the respondent attended upon the appellant’s
vehicle, he
believed, based on reasonable grounds, that the appellant was intending to drive
the vehicle. Thus, Mr Gyorffy submitted
that the magistrate was not only
entitled, but obliged, to conclude that, at that time, the appellant was deemed
to be in charge
of the vehicle, by reason of the operation of s 3AA(1)(b)
of the Act. Alternatively, Mr Gyorffy submitted that, if the
appellant’s
conviction is set aside, I should remit the case to the
Magistrates’ Court for a rehearing.
Whether the conviction should be set aside
38 The first question is whether, as a result of the error of the magistrate,
the appellant’s conviction should be set aside.
That issue is raised by
the submission by Mr Gyorffy, to which I have just referred, that, in the
circumstances, the magistrate
was both entitled and obliged to conclude that the
informant believed, on reasonable grounds, that the appellant was about to drive
the vehicle, at the time at which the respondent came upon the appellant’s
vehicle.
39 It is well established that in the case of a civil appeal, a
respondent may support the decision below based on a ground other
than that on
which the decision was based, provided that there is sufficient evidence to
sustain that ground, and provided that there
is no resultant injustice or
unfairness to the
appellant.[8]
On the other hand, the position is quite different with respect to an appeal
from a criminal conviction imposed by a magistrates’
court. In such an
appeal, it is well established that where the decision by the magistrate to
convict the appellant was the result
of a material error of law by the
magistrate, this Court, on review or on appeal, should only decline to quash the
conviction if,
notwithstanding that error of law, the appellant should
nevertheless ‘clearly have been convicted’ on the evidence adduced
before the magistrate.[9] Thus, in a case such
as this, the respondent would need to be able to point to uncontradicted
evidence upon which the court below,
if it had not made the relevant error of
law, would clearly have been obliged to convict the
appellant.[10]
40 The difficulty with
Mr Gyorffy’s submission arises from the course which the case took
before the magistrate. It would appear
that, initially, both parties understood
the respondent to be relying on s 3AA(1)(b) of the Act to establish that
the appellant was,
at the relevant time, in charge of the vehicle. However, in
the course of the no case submission, the prosecutor relied on an alternative
proposition, namely, that the magistrate was not bound to find that the case
came within any of the four categories specified in
s 3AA(1)(a) to (d). In
effect, the prosecutor submitted that the magistrate should adopt a
‘common law’ definition of
the phrase ‘in charge of a motor
vehicle’. In the course of further argument, that alternative position
became the case
made by the prosecution. The magistrate accepted that case so
put by the respondent. As a result, the magistrate did not make any
finding
whether the respondent, at the relevant time, believed that the appellant
intended to drive the vehicle, and, further, his
Honour made no finding as to
whether there were reasonable grounds for any such belief, if it was so held by
the respondent.
41 Further, the respondent himself did not give any express
evidence as to his belief as to that matter, and as to any grounds upon
which he
might have held such a belief. The principles relating to the proof of those
matters have been discussed in a number of
authorities, and were recently
helpfully compiled by Bell J in Director of Public Prosecutions v
Farmer.[11]
In particular, the following principles are relevant:
(1) The informant should give specific evidence as to the belief which he or she formed in relation to the intention of the defendant to start or drive the vehicle.[12]
(2) In addition, the informant should expressly state the basis upon which he or she formed that belief.[13]
(3) It is not necessary that the informant be satisfied of the particular fact on the balance of probabilities; rather, the informant must establish that he or she held the belief on reasonable grounds.
(4) Such a belief has been described as ‘an inclination of the mind towards assenting to, rather than rejecting, a proposition ...’[14] In DPP v Farmer,[15] Bell J stated that a ‘belief is something more than suspicion but does not need to approach anything like certainty.’
(5) The belief by the informant must be a belief that the defendant intended to ‘... start the engine or drive off forthwith, or to do so at any point of very close futurity’.[16]
(6) The question is not whether the court itself holds, or agrees with, the belief that the defendant intended to drive or start the vehicle. Rather, the question is whether the informant held such a belief, and whether the informant did so on reasonable grounds.[17]
42 It is clear that the matters, to which I have just referred, received little,
if any, attention in the evidence and in submissions.
As I stated, the
respondent did not give any express evidence as to his belief, or as to the
grounds on which it was based. In
his evidence, he stated that when the
appellant told him that he had not been there long, he decided to administer a
preliminary
breath test to the appellant. That evidence, by the respondent,
strongly suggests that he administered the breath test based on
the erroneous
view that he was entitled to do so, because the appellant had been driving
recently. On the other hand, Mr Gyorffy
submitted that, in the context of
the case, the evidence of the respondent implied that the respondent had formed
the view that the
appellant was then intending to drive the vehicle.
Mr Gyorffy submitted that that implication was based on the evidence that
the
engine was still running, that there was no reason to do so, and that the
appellant said he had only arrived at the location a short
time ago.
43 Even granting that the proposition advanced by Mr Gyorffy is
arguable, at most the evidence, by the respondent, as to the requisite
belief,
was ambiguous. On the view most favourable to the respondent, the evidence was
not sufficiently clear and unequivocal to
enable me to conclude that the
magistrate was bound to conclude that the respondent held the belief, on
reasonable grounds, that
the appellant was then intending to drive his vehicle.
44 In those circumstances, I reject the submission by Mr Gyorffy that
the conviction should stand. Rather, the magistrate having
reached the
conclusion on the basis of an erroneous proposition of law, it follows that the
conviction should be quashed.
Whether the matter should be remitted to the Magistrates’ Court
45 The question which remains is whether I should accede to
Mr Gyorffy’s alternative submission, to remit the case to the
Magistrates’
Court for a rehearing. In general, when the Supreme Court
reaches a conclusion that a trial in a Magistrates’ Court has miscarried
because of a failure of the lower court to direct its mind to the correct
question, or to make the necessary findings of fact, the
usual course is to
remit the case for
rehearing.[18] In
particular, ordinarily, a case would be remitted for a rehearing, if the facts,
proven on the first trial, would have been sufficient
to support a conviction,
if the magistrate had applied the correct principles of
law.[19] On the other hand, if the evidence,
adduced before the magistrate, was insufficient to justify a conviction, then
the case should
not be remitted to the court for a further
hearing.[20]
46 In the present case, taking
the evidence of the respondent before the magistrate at its highest, it is
arguable that it is implicit
that, at the relevant time, he believed that the
appellant was intending to drive the vehicle. However, that evidence falls well
short of satisfying the principles which I have summarised above, as to the
evidence which needs to be adduced to prove the relevant
state of mind of the
informant. While the evidence might, perhaps, have been sufficient to enable
the prosecution to withstand a
no case
submission,[21]
nevertheless that evidence would be entirely inadequate to entitle a court to
conclude, beyond reasonable doubt, that the informant
believed, on reasonable
grounds, that the appellant was intending to drive the vehicle, at the time the
informant found the appellant
in the vehicle. It is a matter of conjecture
whether the respondent, on a rehearing, would depose to the required belief,
and, if
so, whether he would disclose reasonable grounds for such a belief.
This is particularly so given the evidence by the respondent
that, when he
approached the vehicle, the appellant appeared to be asleep, and the appellant
only woke up when the respondent knocked
several times on the vehicle’s
window. In light of that evidence, it is very doubtful that, on a rehearing,
the evidence would
be sufficient to prove, beyond reasonable doubt, that the
respondent held the belief, referred to in s 3AA(1)(b) of the Act.
47 In
those circumstances, I do not accept the submission made on behalf of the
respondent that the case be remitted to the Magistrates’
Court for a
rehearing.
48 For the foregoing reasons, I have reached the following conclusions in this matter:
(1) The magistrate made an error of law in his interpretation and application of s 48(1)(b) of the Road Safety Act, and, as a consequence, his Honour wrongly concluded that the appellant was in charge of the vehicle for the purposes of the offence charged under s 49(1)(f) of the Act. Accordingly the magistrate wrongly convicted the appellant on that charge.
(2) I reject the submission made on behalf of the respondent that notwithstanding the error by the magistrate, the appellant’s conviction for the charge under s 49(1)(f) should not be quashed.
(3) I do not accept the submission made on behalf of the respondent that the case be remitted to the Magistrates’ Court for a rehearing.
Orders
49 Based on the above conclusions, and subject to hearing from counsel, I propose to make the following orders:
(1) The appeal by the appellant against the orders made 29 October 2012 by the Magistrates’ Court at Moorabbin is allowed.
(2) The orders made by the Magistrates’ Court convicting the appellant of a charge under s 49(1)(f) of the Road Safety Act 1986, fining the appellant $500, and cancelling all licences and permits issued under the Road Safety Act for a period of 24 months, are set aside.
(3) In lieu of such orders, it is ordered that the charges laid against the appellant by the respondent be dismissed.
50 I shall hear counsel on the question of costs.
[1] Act No 92 of 2001.
[3] Ibid [7].
[4] Ibid [9].
[6] (Unreported, Supreme Court of Victoria, Marks J, 27 July 1988).
[8] Compare David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416, 420-421 (Kirby P), 427 (Hope JA); Waller v Thomas [1921] 2 KB 541, 548 (McCredie J); Chapman v Knight (1880) 5 CPD 308, 314 (Grove J); In re the Solicitors’ Act [1938] 1 KB 616, 627 (Greer LJ).
[9] See Knox v Bible (No 2) [1907] VicLawRp 87; [1907] VLR 485, 497 (Cussen J); Macmanamy v King [1907] VicLawRp 93; [1907] VLR 535, 543 (A’Beckett and Cussen JJ); Chappell v A Ross & Sons Pty Ltd [1969] VicRp 48; [1969] VR 376, 394 (Gowans J); Walford v McKinney [1997] 2 VR 353, 356 (Tadgell JA); Engebretson v Bartlett [2007] VSC 163; (2007) 16 VR 417, 437-438 [113], 439 [235] (Bell J); Walpole v Bywool Pty Ltd [1963] VicRp 26; [1963] VR 157, 160 (O’Bryan J); Johnson v Poppeliers [2008] VSC 461; (2008) 20 VR 92, 110 [57]-[58] (Kyrou J).
[10] Cf Pagett v Hales [2000] NTSC 35, [18] (Mildren J); Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 481-482 [33].
[12] Ibid [14]; DPP v Mitchell [2002] VSC 326, [39] (Gillard J).
[13] Ibid.
[14] George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 116.
[15] [2010] VSC 343, [34].
[16] Woods v Gamble (1991) 13 MVR 153, 156 (Fullagar J).
[17] Cf Walsh v Loughnan [1991] VicRp 75; [1991] 2 VR 351, 356 (Vincent J).
[18] Klemenko v Huffa (1978) 17 SASR 549.
[19] Davey v Liebelt [1960] SASR 1, 4 (Reed J); Brown v Department of Police and Emergency Management [2009] TASSC 90, [9] (Evans J).
[20] Reid v The Queen [1980] AC 343, 348-9; Andrews v R [1968] HCA 84; (1968) 126 CLR 198, 211 (Barwick CJ, McTiernan, Taylor, Windeyer and Owen JJ).
[21] May v O’Sullivan [1955] HCA 38; (1955) 92 CLR 654, 658; Wilson v Kuhl [1979] VicRp 33; [1979] VR 311, 319 (McGarvie J); Attorney-General’s Reference (No 1 of 1983) [1983] VicRp 101; [1983] 2 VR 410, 414, 417-418.
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