Barnsley v Ulavalu
[2017] ACTMC 14
•4 August 2017
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Barnsley v Ulavalu |
Citation: | [2017] ACTMC 14 |
Hearing Date: | 19 May 2017 |
Last Submissions: | 18 July 2017 |
DecisionDate: | 4 August 2017 |
Before: | Magistrate Theakston |
Decision: | 1. Charge CC2016/9271 in relation to failing to stop is proved. 2. Charges CC2016/9323 and CC2016/9324 relating to riding while suspended are not proved and are dismissed. |
| Principal Judgment | |
Catchwords: | CRIMINAL LAW –– Rode while suspended - Fail to stop motor vehicle for police CRIMINAL PROCEDURE –– Whether offence known to law –– Short form of offences specified by regulation –– Whether short form sufficient –– Police direction to stop individual or multiple motor vehicles |
Legislation Cited: | Criminal Code 2002 (ACT) s 22 Legislation Act 2001 (ACT) s 157 Magistrates Court Act 1930 (ACT) s27(2) Road Transport (Driver Licensing) Act 1999 (ACT) ss 16, 19A, 32(2)(a) Road Transport (General) Act 1999 (ACT) s72 Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 5C Road Transport (Offences) Regulation 2005 (ACT) r 17 |
Cases Cited: | Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2016] ACTSC 332 Davies v Ryan [1933] HCA 64 Walsh v Tattersall [1996] HCA 26 |
Parties: | Lysa Barnsley (Informant) Pitasoni Ulavalu (Defendant) |
Representation: | Counsel Mr B Ngugi (Informant) Mr T Sharman (Defendant) |
| Solicitors Director of Public Prosecutions (Informant) Sharman Robertson Solicitors (Defendant) | |
File Numbers: | CC 9271 of 2016 CC 9323 of 2016 CC 9324 of 2016 |
MAGISTRATE THEAKSTON
Situation
In August 2016, the Canberra chapter of the Comanchero Outlaw Motorcycle Gang conducted their annual run through the Territory. The run involved riding their motorbikes, in formation, along public roads and ultimately to the Comanchero’s Fyshwick clubhouse.
The defendant, Mr Ulavalu, was observed by members of the AFP to participate in that run in Phillip and later in Fyshwick. The prosecution say he did so while his licence to ride was suspended.
At the Fyshwick location, the AFP attempted to conduct a traffic stop of the entire group for the purpose of conducting licence and registration checks and random breath and drug tests. Despite verbal and hand signals by police for the group to stop, a number of riders, including Mr Ulavalu, failed to stop and instead rode on and continued into their nearby clubhouse.
The following facts were not in dispute:
(a)Mr Ulavalu rode a motorbike on a public road, as part of the run, at Phillip and Fyshwick on 27 August 2016.
(b)In Fyshwick the police signalled the entire group to stop.
(c)When the group was directed to stop, Mr Ulavalu did not stop and continued riding past police and into the clubhouse.
The following questions are in issue:
(a)Do the informations in relation to riding while suspended informations describe offences known to law?
(b)Did the prosecution establish that Mr Ulavalu’s licence was suspended?
(c)Are the informations in relation to riding while suspended bad for duplicity and or do they amount to an abuse of process?
(d)Does the information in relation to failing to stop require the prosecution to establish that police signalled Mr Ulavalu individually to stop or that Mr Ulavalu was aware that a direction to stop was made by police to him individually?
Charges
Mr Ulavalu was charged by summons with the following informations:
(a)CC16/9271 – s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT)
that he, on 27 August 2016, in the Australian Capital Territory, as a first offender, did drive a motor vehicle and when a police officer asked or signalled for him to stop the motor vehicle failed to comply with the police officer’s request or signal as soon as practicable
(b)CC2016/9323 – s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT)
that he in the Australian Capital Territory on 27 August 2016, a first offender rode while his licence was suspended by law
(c)CC2016/9324 – s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT)
that he in the Australian Capital Territory on 27 August 2016, a first offender rode while his licence was suspended by law
Principles to be applied
In these proceedings I must find the facts, draw inferences from them, and apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and defendant are entitled to my verdict free of partiality, prejudice, favour or ill-will. I must deliver my decision according to the evidence.
The prosecution bears the onus of proving the guilt of the defendant at all times. The defendant does not have to prove that he did not commit the offences charged. The standard of proof on the prosecution case is proof beyond reasonable doubt and the defendant cannot be found guilty of a charge unless the evidence, as accepted by me, satisfies me beyond reasonable doubt of his guilt. If the evidence fails to satisfy me beyond reasonable doubt of any or all of the elements of any individual charge, I must dismiss the charge. If I am satisfied that there may be an explanation consistent with the innocence of the defendant, or I am unsure of where the truth lies, then I must find the charge has not been proven to the requisite standard and I must dismiss the same.
I must determine whether each of the witnesses is a reliable witness. I can accept all, part or none of a witness’s evidence.
10. The defendant did not give evidence during his hearing. No inference, adverse to him, can be drawn from his decision to exercise his right to silence. Nor can the absence of evidence from the defendant be used to fill in any gaps or be used as a makeweight for any deficiency in the prosecution case.
Do the informations in relation to riding while suspended describe offences known to law?
11. It was common ground that, in addition to any common law requirements, if the description of an offence within an information adopted the words, or similar words, of the statute creating the offence then the description would be sufficient in law (see s 27(2) Magistrates Court Act 1930 (ACT), Davies v Ryan [1933] HCA 64 and Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2016] ACTSC 332 at [76]). It was also common ground that in relation to offences under the Territory’s road transport legislation, if such descriptions used, or were substantially the same as, the prescribed short descriptions, then they were also sufficient in law (see s 75 Road Transport (General), Burridge at [86]).
12. For the purpose of an offence against s 32(2)(a) of the Road Transport (Driver Licensing) Act r 17 and schedule 1 part 1.5 of the Road Transport (Offences) Regulation 2005 (ACT) provided the following short description:
drive while licence suspended – first offender
13. Accordingly, the first step in determining whether the descriptions used within the informations CC2016/9323 and 9324 are legally sufficient, is to assess whether or not they use, or are substantially the same as, the prescribed short description. If the answer is in the negative, then further assessment would be required in relation to the s 27(2) standard and, if necessary, again further assessment against the common law requirements.
14. The prosecution submissions conveniently presented a comparison of the relevant words of the informations and short descriptions in the following tabulated form:
Words on Information
Short Form Description
A first offender rode while his licence was suspended by law
Drive while licence suspended – first offender
15. The material differences between those two expressions is the use of the word ‘rode’ rather than ‘drive’ and the addition of the words ‘by law’. The prosecution argued, that both departures from the short description relate to the addition of particulars and therefore do not invalidate the descriptions.
16. ‘Rode’ is not defined within the road transport legislation. However, pursuant to s 157 of the Legislation Act 2001 (ACT) that term has the corresponding meaning of the defined term ‘ride’. The terms ‘ride’ and ‘drive’ are defined within the road transport legislation as follows:
drive, a vehicle, includes –
(a)be in control of the steering, movement or propulsion of the vehicle, and
(b)if the vehicle is a trailer – draw or tow the vehicle, and
(c)if the vehicle can be ridden – ride the vehicle.
ride, for the rider of a motorbike or an animal-drawn vehicle, includes be in control of the vehicle.
17. The term ‘ride’ is therefore a subset of the term ‘drive’. To drive includes to ride, although to ride may not include to drive. While related terms, they could not be characterised as being interchangeable and are therefore not the same.
18. However, the terms may, in certain circumstances, describe the same conduct. The instant case is such an example. Further, the use of the term ‘ride’ is not only consistent with the same offence under s 32(2)(a) but also provides additional specificity to the information. In such circumstances it is my view that the use of the term ‘ride’ is substantially the same as the use of the term ‘drive’.
19. The addition of the expression ‘by law’ clearly qualifies the term ‘suspended’. It appears that such an addition either states the obvious, that any suspension involved a legal consequence, or instead further particularised the suspension as arising as an operation of law, following any necessary circumstances, rather than by operation of the exercise of a discretion. In the instant case the evidence suggests the suspension related to the accumulation of demerit points. Sections 16 to 19A of the Road Transport (Driver Licencing) Act provide a mandatory process, or pathway, following the accumulation of demerit points, including the suspension of a driver licence. The pathway has a number of mandatory steps, with the only variation being that the driver may elect to be of good behaviour for a period in lieu of having his or her licence suspended. That process can be contrasted with what is provided under the Road Transport (General) Act for the non-payment of traffic infringement notices where, to some degree, the Road Transport Authority exercises a discretion.
20. In the former interpretation, the use of the express ‘by law’ does little to the meaning of the description within the informations. In the latter interpretation, it provides further particulars to the informations. In either case the departure is not significant and in my view the description used is substantially the same as the prescribed short description.
21. Accordingly, the descriptions within these two informations are sufficient in law to describe an offence known to law.
Did the prosecution establish that Mr Ulavalu’s licence was suspended?
22. The prosecution relied solely on a certificate issued under s 72 of the Road Transport (General) Act. Section 72(1)(h) of allows certificates issued on behalf of the Road Transport Authority to be prima facie evidence of, inter alia, a ‘matter that appears in or can be worked out from any other record kept by the authority under the road transport legislation’. The steps taken by the authority and driver in accordance with the above pathway, following a driver’s accumulation of demerit points, would fall within such matters.
23. It was submitted on behalf of Mr Ulavalu that while the certificate addressed a number of the pathway steps associated with demerit point accumulation, it failed to mention whether or not Mr Ulavalu elected to be on good behaviour at any point during the entire period the election was available. The certificate stated that such an election had not been received prior to the licence being suspended. However, the election remained available to Mr Ulavalu after that point in time and right up to the last day of his suspension. The certificate was silent about whether an election had been received during that subsequent period. Had Mr Ulavalu serving an election on the authority during that period, the suspension of his licence would immediately cease and his licence would not have been suspended on 27 August 2016. Therefore it was critical for the prosecution to establish that no election was received before 27 August 2016, not just before the suspension initially took effect.
24. In the absence of any evidence that no election was received during that period, the prosecution has not established, to the requisite standard, that Mr Ulavalu’s driver licence was suspended on the day in question.
25. I note out of completeness that the certificate also referenced the incorrect Act when stating Mr Ulavalu was suspended from driving due to demerit points. As indicated earlier, the certificate provides a mechanism to assist the prosecution establish facts based upon the records of the authority. It is only prima facie evidence of such facts, and a court may accept facts to the contrary based upon other competing evidence. In the instant case there was no competing evidence contradicting the certificate. However, that being said, the certificate can only be relied upon for what it states. If the certificate contains an error, then that error cannot be ignored and the correct information assumed or extrapolated. Such errors can result in an element of the offence not being established.
Are the informations in relation to riding while suspended bad for duplicity and or do they amount to an abuse of process?
26. Due to my view about the inadequacy of the s 72 certificate, I need not reach a concluded view about this issue. However, I do note that duplicity usually refers to more than one offence being contained within a pleaded charge or information, rather than two or more charges arising from the one offence: Walsh v Tattersall [1996] HCA 26. In the instant case the evidence suggests a period of one hour between Mr Ulavalu being observed riding a motorbike in Phillip and later in Fyshwick. If necessary I could take judicial notice that those two suburbs are only approximately 10km apart.
27. It is not patent from those circumstances there would be an abuse of process. The argument was not developed further and no authorities were referenced.
Does the information in relation to failing to stop require the prosecution to establish that police signalled Mr Ulavalu individually to stop or that Mr Ulavalu was aware that a direction to stop was made by police to him individually?
28. It was submitted on behalf of Mr Ulavalu that before this offence could be made out, the evidence would need to establish that police asked or signalled to Mr Ulavalu to stop individually and that Mr Ulavalu was aware of that fact.
29. Section 5C of the Road Transport (Safety and Traffic Management) Act reads:
A person commits an offence if—
(a)the person is driving a motor vehicle; and
(b)a police officer asks or signals the person to stop the motor vehicle; and
(c)the person fails to comply with the police officer's request or signal as soon as practicable.
30. Due to s 5C being inserted after 2002, Ch 2 of the Criminal Code 2002 (ACT) applies to that provision. Section 22 of the Criminal Code imposes the following corresponding default fault elements to the above physical elements:
(a)intention,
(b)recklessness, and
(c)intention.
31. It is clear from a plain reading of the provision, that a police officer must signal a defendant for the offence to apply. Further the defendant needs to be at least reckless to that fact. That is the defendant must have been aware of a substantial risk that the circumstance exists or will exist, and having regard to the circumstances known to the person, it is unjustifiable to take the risk. Alternatively, the defendant could be aware of the circumstance.
32. While it is clear from the plain reading of the provision that those elements must relate directly to a defendant, there is nothing within the provision to prevent directions being given to more than one driver or rider at the one time. However, where such directions are given to more than one driver or rider, or in circumstances where there are other drivers and riders proximate to a defendant, it may be more difficult to establish that a defendant was sufficiently reckless or aware that the direction may be directed to him or her.
33. In the instant case evidence was received from two AFP members, Senior Constable Brian and Constable Barnsley and I accept their evidence. They both signalled the riders to stop. Constable Barnsley observed the group riding in a V formation, with Mr Ulavalu riding just behind the apex of that formation. In evidence there were a number of photographs and a video of the police members’ actions in relation to their signalling and the riders’ responses. The video portrays the V formation and the group approaching police at a relatively slow speed behind a green sedan. The photographs show that the road is partially blocked by a marked police car. Senior Constable Brian was in full police uniform and Constable Barnsley wore a vest marked with the word ‘Police’.
34. Senior Constable Brian can be seen standing in the middle of the road as the riders approach. As the car passes him he turns and places his right arm out and faces the riders. He then places his left arm out as well while facing the group, in a clear signal for the group to stop. However, by that stage the defendant has passed the police member.
35. The apex of the group then turn right towards the entrance of their club house and Constable Barnsley quickly and deliberately walks directly towards the apex of the group with her right palm held out in front of her and yells the word ‘stop’ repeatedly. She directs her palm towards the lead rider, who passes without stopping. The location of Senior Constable Brian has caused Mr Ulavalu to make a sharp right hand turn around the police member, presumably for the purpose of entering the driveway to the club house. The defendant pauses momentarily, including placing at least one foot on the ground. Constable Barnsley then directs her palm towards Mr Ulavalu and other riders behind him. Notwithstanding Constable Barnsley’s clear signal towards Mr Ulavalu, he continues to ride directly past her without stopping.
36. I am satisfied that both police members gave Mr Ulavalu a signal to stop. I am satisfied of this, notwithstanding they simultaneously gave other riders a signal to stop. I am satisfied that Mr Ulavalu observed that signal from Constable Barnsley and was at least reckless about that signal. I am satisfied that Mr Ulavalu did not stop and did so intentionally. Accordingly, I find that offence described in information CC2016/9271 proved.
Decision
37. Charge CC2016/9271 in relation to failing to stop is proved.
38. Charges CC2016/9323 and CC2016/9324 relating to riding while suspended are not proved and are dismissed.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Theakston. Associate: Taden Kelliher Date: 04 August 2017 |
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