Burk v Wilton

[2000] TASSC 110

[2000] TASSC 110

CITATION:                 Burk v Wilton [2000] TASSC 110

PARTIES:  BURK, Philippa Jane
  v
  WILTON, Scott Anthony

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 41/2000
DELIVERED ON:  18 August 2000
DELIVERED AT:  Hobart
HEARING DATE:  9 August 2000
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Traffic Law - Offences - Particular offences - Alcohol and drug related offences - Tasmania - Other offences - "Drive" what constitutes.

Cooley v Lowe [1984] Tas R 107; Allan v Quinlan; Ex parte Allan (1986) 3 MVR 343; Baldock v Barnes (1993) 19 MVR 33, referred to.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss2(4), 6(1) and (2).
Aust Dig Traffic Law [80]

REPRESENTATION:

Counsel:
             Applicant:  K Brown
             Respondent:  G T Stevens
Solicitors:
             Applicant:  Director of Public prosecutions
             Respondent:  E R Henry Wherrett & Benjamin

Judgment  Number:  [2000] TASSC
Number of paragraphs:  10

Serial No 110/2000
File No LCA 41/2000

PHILIPPA JANE BURK v SCOTT ANTHONY WILTON

REASONS FOR JUDGMENT  COX CJ

18 August 2000

1. The respondent was charged with two counts of driving a motor vehicle on 1 August 1997 contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1) and (2) respectively. It was not disputed that he had, at the relevant time, a blood alcohol reading in excess of the prescribed amount and was a person to whom the Act, s6(3), applied. What was in issue was whether he drove the vehicle. The learned magistrate dismissed the complaint, not being satisfied beyond reasonable doubt that he did drive.

1. The only evidence for the prosecution was that of a police officer, Constable Lennox, who, with a colleague who was not called to give evidence, was despatched to the scene of a disturbance at Gagebrook at about 9.10pm.  On arrival, he said he saw a Kingswood sedan parked on the incorrect side of the road.  He then saw it move forward a few feet and stop.  Two male persons were seated in the vehicle, the respondent being "the driver" (sic) and another person being seated in the front left passenger seat.  The doors were shut while the vehicle was in motion and there were no persons pushing the vehicle.  The two occupants alighted, the bonnet was lifted and the passenger made some moves around the engine bay.  The Constable asked the respondent what he was doing and he said, "He was just moving his vehicle to park it and he wasn't going to drive it".  At the breath analysing section, a questionnaire was filled in and adopted by the respondent.  In it he answered the following questions thus:

"1        Where had you driven from prior to being intercepted?

REPLY:          I was pushing the car off the side of the road.

2         Where did you intend driving to?

REPLY:          1 foot off the sidewalk to a foot closer to the sidewalk.

3         What was the purpose of this journey?

REPLY:          Getting the car off the road."

The witness said that as he was in his vehicle at the time he saw the Kingswood moving, he could not say whether or not the engine was running.  He looked for a key to the ignition but could not find one and when he asked the respondent for the key, the latter said he did not have one.  That model Kingswood has a steering lock and can be started without a key.  The respondent had been seated behind the steering wheel while the vehicle was moving and it started moving as the police came around the corner.  It stopped suddenly (although not with a jerk ¾ "It just came to a stop") only after a matter of a few feet.  The road had a slight down hill slope in front of the Kingswood.  These were the basic facts, although the Constable admitted in cross-examination that the Kingswood's lights were not illuminated, that he had not checked to see if the engine was warm and could not say that it had been running.  He also agreed that there were some inconsistencies between his evidence and certain police statements and that his recall of all the events surrounding the incident nearly three years previously was imperfect.  The respondent neither gave nor adduced evidence.

1. The learned magistrate, in her reasons for dismissing the complaint, said in part:

"… it's clear that at all relevant times the person that was in the driver's seat of the motor vehicle was, in fact, the Defendant.  That part of Constable Lennox's evidence was [sic ¾ ? not] actually challenged in cross-examination.  It's also clear that the Defendant was the person who was subsequently breathalysed and who produced the reading that's the subject of the charges.

The question which arises is, was the Defendant driving the motor vehicle within the meaning of the legislation and the law generally.  The evidence of Constable Lennox in no way satisfies me that the car was under power.  There were no keys, there was no check of the engine to see if it was warm and had been used.  There was no direct evidence of the fact that the engine was actually going, and there were inconsistencies in, as I've indicated, Constable Lennox's evidence as to the status of the car apropos the Defendant at the time the police came on the scene.  And I'm referring in particular to the evidence that was highlighted about whether the Defendant was attempting to start the car, or had already started it.  Constable Lennox's evidence was that the car had moved about - that he'd observed the car to move about three feet, and that evidence in itself wasn't actually challenged in cross-examination.  The difficulty, however, in looking at that evidence, and in putting that into the context of whether it could be said that the Defendant was actually driving the motor vehicle, is that, as I've indicated, there was really no evidence that the engine itself had been turned on.  There was no key.  The Defendant said he didn't have one.

There was no evidence actually given, nor even sought, to suggest perhaps whether the headlights on the vehicle were on or off, and this did occur late in the evening.  There was no evidence that the car, if it did move, changed direction during that movement.  There was no evidence of any, or any obvious evidence, of actual braking as opposed to the car, if it had moved sliding to a halt.  There was evidence that the vehicle was on a slight incline in the direction in which the car was facing.  There was also evidence that the car had to be pushed after the event, if I can refer to it as that, to move it.

Now there was other evidence given by Constable Lennox to basically attempt to support a contention that the Defendant was in a situation where he had to try and get away and therefore must have been driving the vehicle.  However, the scenario constructed by Constable Lennox, and I'm not putting this with a suggestion that he falsely constructed it, but simply that he perhaps interpreted the situation after the event to suit what he thought might have happened, that the scenario that was attempted to be constructed in the evidence by Constable Lennox, there was really insufficient material to back it up, and that became fairly obvious when it was put to Constable Lennox if he could recall where he had taken the Defendant after the Defendant had been processed, charged and bailed, and Constable Lennox couldn't dispute that he may have actually taken the Defendant back to 22 Calvert Crescent.

Having looked at the evidence, and having reviewed the interpretation or definition of the term 'driving' that appears in the authority referred to of Cooley v Lowe, and the provisions in the Road Safety (Alcohol and Drugs) Act, I would have to say, having regard to the evidence, that I couldn't be satisfied beyond reasonable doubt on the Prosecution evidence that the Defendant could be said to have been driving the motor vehicle. In those circumstances, in respect of the two counts under the Road Safety (Alcohol and Drugs) Act, I propose to dismiss the complaint."

1. The applicant contends that "the learned magistrate erred in fact and/or in law failing to hold, upon the whole of the evidence, that the respondent was driving the vehicle".

1. The Act, s2(4) provides:

"2 ¾ …

(4)  A reference in this Act to the driving of a vehicle or a motor vehicle shall be construed as including a reference to the having charge of that vehicle or motor vehicle, and a person may, having regard to the particular circumstances of the case, be regarded as driving a motor vehicle for the purposes of this Act notwithstanding that the motor vehicle is stationary or that he may have alighted from the vehicle."

Consideration was given to the authorities on the meaning of driving and the extended meaning given to it by that subsection in Cooley v Lowe [1984] Tas R 107 where the Full Court held that whether or not a person seated behind the steering wheel of a towed vehicle can be said to be driving is a question of fact in each case and that the essence of driving is the use of the driver's controls in order to direct the movement of the vehicle, however that movement is produced. The test was held to be the same as that laid down in MacDonagh [1974] QB 448 where, at 451, Lord Widgery CJ said:

"The Act does not define the word 'drive' and in its simplest meaning we think that it refers to a person using the driver's controls for the purpose of directing the movement of the vehicle.  It matters not that the vehicle is not moving under its own power or driven by the force of gravity, or even that it is being pushed by other well-wishers.  The essence of driving is the use of the driver's control in order to direct the movement, however that movement is produced.  …  Although the word 'drive' must be given a wide meaning, the courts must be alert to see that the net is not thrown so widely that it includes activities which cannot be said to be driving a motor vehicle in any ordinary use of that word in the English language.  Unless this is done, absurdity may result by requiring the obtaining of a driving license and third-party insurance in circumstances which cannot have been contemplated by Parliament."

1. The prosecution evidence at best shows that while the respondent was seated behind the wheel of the Kingswood, it moved forward some three feet down a slight decline and came to a halt.  The learned magistrate was not satisfied the car was under power and there was no evidence of any external force propelling the vehicle forward.  There was no admission by the respondent of driving, although he admitted to moving the vehicle a few feet to a safer position.  As the learned magistrate pointed out, there was no evidence of any change in direction or braking.  Although Cooley v Lowe (supra) was a towing case and counsel for the applicant sought to distinguish it on the basis that different considerations applied where control of the vehicle is shared with others, the principle remains the same that whether or not a car is driven by a person is a question of fact which depends upon the degree of control exercised over the vehicle.  Here the paucity of evidence is such that the learned magistrate was entitled to entertain a reasonable doubt as to whether or not it was being driven.

1. In Allan v Quinlan; Ex parte Allan (1986) 3 MVR 343, the Full Court of the Supreme Court of Queensland held that a person who caused a motor bicycle to move by force of gravity down a road in circumstances where he was seated side-saddle holding the handlebars and controlling the direction of the cycle and had applied the brakes to stop it, was, in a substantial sense, controlling the vehicle and hence driving it. Connolly J, at 346, said:

"… there is an obvious distinction between a vehicle which is caused to coast on a highway and one which is merely moved a metre or so for the purpose, for example, of getting it to the curb or clear of the entrance to a house or for some other such purpose.  The vehicle which is caused to coast from the top of Mount Coot-tha would probably be described as being driven along that perilous course in an ordinary sense of the word.  On the other hand a vehicle which is rolled a metre or so, albeit with the aid of gravity, would not be so described."

At 347 he said, referring to the facts I have outlined:

"The facts to which I have referred were stated by the prosecution and formerly admitted by the respondent's solicitor.  If the admission had merely been that the vehicle was seen moving I should have thought that the facts were insufficient to determine whether the respondent was driving in an ordinary sense of the word.  On the admitted facts it seems to me that the respondent was, in truth, controlling the movement and direction of the vehicle in a substantial sense."

In my opinion, the mere fact that the Kingswood was seen moving some three feet while the respondent was in the driver's seat, coupled with his statements to the police about moving the vehicle, is insufficient to prove that the respondent was driving it.

1. Reliance, however, is placed by the applicant on the extended meaning given in the Act, s2(4). It is said that the respondent had full dominion over the vehicle and had the capacity and intention to move it. Reference was made to Baldock v Barnes (1993) 19 MVR 33; Tasmanian unreported judgment B24/1993 where Zeeman J dealt with a situation where the facts were that the defendant was seen sitting in the driver's seat of a car parked over the crest of a hill. Children had alighted from the vehicle and the defendant was seen attempting to put a key in the ignition. When he saw the arresting police, he dropped the keys and climbed into the passenger seat. He said "He was thinking of driving off". There was some confusion as to whether the keys were ignition keys or household keys. Zeeman J said at 35 - 36:

   "Whatever key the applicant was using in an endeavour to start the motor vehicle, it is plain that the applicant was exercising full dominion over the vehicle and was endeavouring to start it so that he might drive away in it. Nevertheless, submits counsel for the applicant, if the key which the applicant had in his possession was a key which was incapable of starting the motor vehicle, he was not driving it within the meaning of the Act. ... The applicant was attempting to start the vehicle so that he might drive it away. Even if the means employed by him were incapable of achieving that end, it remained the position that he was attempting to start the vehicle and he might well have achieved that purpose even if not by use of the particular key. Counsel submitted that a person may not be convicted of attempting to commit a crime or offence if the circumstances are such that the actual commission of that crime or offence is impossible. It ought to be observed that the applicant was not convicted of attempting to commit an offence but of the completed offence. The attempt he made to start the vehicle was not an attempt to commit an offence but an act which, combined with the other circumstances, constituted the commission of the completed offence."

2. In Cooley v Lowe (supra) at 119, I made reference to a decision of Morris CJ in Smith v Westell [1948] Tas SR 97 at 98 where his Honour said:

"It was contended that a man may be said to 'have charge of' a vehicle while it is on the street and he is in a building or while it is in his own garage locked up for the night.  But that is not the sense in which 'have charge of' is used in the section.  Having regard to what I think is the purpose of the section, it is possible to limit the meaning of 'have charge of' so as to mean that in addition to his having the care, custody or responsibility for the vehicle in a public place, the relationship of the man to the vehicle must be such that he can and, more than that, there is a reasonable likelihood that he will attempt to operate it and so become a danger."

I commented:

"Immediately before its amendment by Act No 91 of 1982, the Road Safety (Alcohol and Drugs) Act 1970, s2(4), had read as follows:

'A reference in this Act to the driving of a vehicle or a motor vehicle shall be construed as including a reference to the having charge of the vehicle or motor vehicle and exhibiting a manifest intention or disposition to drive or attempt to drive it.'

This clearly preserved the need for the prosecution to establish that a defendant in addition to having the care, custody or responsibility for the vehicle in a public place had the kind of relationship with the vehicle of which Morris CJ had spoken.  The deletion of the words 'and exhibiting a manifest intention or disposition to drive or attempt to drive it' and the substitution of other words, have not however, in my view, removed the need to establish that the defendant has the capacity to, and that there is at least a reasonable possibility, if not likelihood, that he will attempt to drive the vehicle and so endanger the public.  The substituted words have done no more than to provide that whether or not such a relationship exists will depend upon the particular circumstances of the case and may be established notwithstanding that the motor vehicle is stationary or that the defendant has alighted from the vehicle."

1. In the present case, although the respondent was seated behind the wheel and the vehicle moved three feet or so while not under power, the evidence did not justify a finding that he had the capacity to and that there was at least a reasonable possibility, if not likelihood, that he would attempt to drive the vehicle and so endanger the public.  His statements only acknowledged an intention of moving the vehicle an extremely short distance to a safer position and did not justify an inference that he was intending to undertake a journey, no matter how short, which would expose the public to danger.  Wide though the definition is, it is subject to the limitation accepted in Cooley v Lowe.  In my view, the learned magistrate did not err and the notice to review must be dismissed.