Buxton v Newall

[2011] TASSC 64

[2011] TASSC 64

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Buxton v Newall [2011] TASSC 64

PARTIES:  BUXTON, Colin Henry
  v
  NEWALL, Tempestt Anne

FILE NO/S:  930/2011
DELIVERED ON:  9 December 2011
DELIVERED AT:  Burnie
HEARING DATE:  2 December 2011
JUDGMENT OF:  Blow J

CATCHWORDS:

Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Other offences – "Drive" – What constitutes.

Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss2(4), 6(1).
Cooley v Lowe [1984] Tas R 107; R v MacDonagh [1974] QB 448, followed.
Burk v Wilton (2000) 31 MVR 301; Carey v Graue [2008] TASSC 24, distinguished.
Aust Dig Traffic Law [80]

REPRESENTATION:

Counsel:
             Applicant:  J Shapiro
             Respondent:  R J Gilmour
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Wright Gilmour

Judgment Number:  [2011] TASSC 64
Number of paragraphs:  15

Serial No 64/2011
File No 930/2011

COLIN HENRY BUXTON v TEMPESTT ANNE NEWALL

REASONS FOR JUDGMENT  BLOW J

9 December 2011

1. This is a motion for the review of orders made by a magistrate dismissing two charges against the respondent that alleged offences contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"). Both charges related to the same incident. On 22 July 2011, the respondent reversed a vehicle out of a parking space in a hotel car park, and then moved it forward into a different parking space. She was the holder of a provisional licence. She was charged with driving a motor vehicle with an excessive concentration of breath alcohol, namely 0.097 grams of alcohol per 210 litres of breath, contrary to s6(1) of the Act, and with driving with alcohol in her body contrary to s6(2). The learned magistrate, Mr D Jones, dismissed both charges on the basis that the respondent's activities did not amount to driving for the purposes of the Act.

1. The respondent gave evidence at the hearing.  She admitted that she sat in the driver's seat of the vehicle, started the engine, engaged reverse gear, reversed out of the first car space, engaged first gear, and propelled the vehicle into the second car space, where she stopped.  The evidence established that the vehicle had manual controls, and that the respondent used the clutch pedal.  There was no evidence to suggest that she intended to drive the vehicle out of the car park.  She gave uncontradicted evidence to the effect that an arrangement had been made for another individual to drive the vehicle away, and that she did what she did in order to demonstrate to her companions that she was capable of driving a manual vehicle.  There were a number of passengers in the vehicle at the relevant time. 

1. The learned magistrate referred to the decision of Tennent J in Carey v Graue [2008] TASSC 24, and the decision of Cox CJ in Burk v Wilton (2000) 31 MVR 301; [2000] TASSC 110. Both of those cases concerned drivers who moved cars very short distances, and were held not to have driven the vehicles for the purposes of the Act. In Carey v Graue, at par[16], Tennent J said, "The evidence showed only an intention to move the vehicle a very short distance within the car park for a specific purpose and did not justify any inference that he [the respondent in that case] was intending to undertake a journey which might expose members of the public to danger."  The learned magistrate seems to have taken that case to indicate that any movement of a car falling short of the undertaking of "a journey which might expose members of the public to danger" did not amount to driving.  However, I do not think that decision should be interpreted as authority for any such proposition. 

1. The facts in Carey v Graue were essentially as follows.  The respondent and a companion were waiting for a taxi at about 3.45am.  They were waiting in the respondent's car, which was parked in a car park.  The respondent was sitting in the driver's seat.  He started the engine in order to operate the heater.  He decided to move the car in order to get a better view of the road where the taxi was expected to arrive.  He did not use the engine, but let the handbrake off, and let the vehicle roll forward a short distance before stopping it.  Tennent J concluded that a magistrate had been right in holding that the moving of the car under those circumstances did not amount to driving.  In my view that case is distinguishable from this one because that case did not involve the use of the engine to propel the vehicle.

1. Burk v Wilton was another case in which a vehicle was moved forwards using gravity, not the engine, as the means of propulsion.  There was no evidence in that case that the engine had been running.  There was evidence that the vehicle moved a few feet down a slight incline and came to a halt.  The magistrate in that case was not satisfied that the car was under power.  There was evidence that the respondent told a police officer that the purpose of moving the car was to get it off the road.  Cox CJ concluded that the magistrate in that case did not err in concluding that he was not satisfied beyond reasonable doubt that the respondent had driven.

1. The meaning of the word "drives" was considered by the English Court of Appeal in R v MacDonagh [1974] QB 448. That case concerned a charge of driving whilst disqualified. There was evidence that the appellant had moved a car by standing on the road and pushing with his shoulder against a door pillar. At 451 Lord Widgery CJ, delivering the judgment of the Court, said the following:

"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 controls in order to direct the movement, however that movement is produced.

There are an infinite number of ways in which a person may control the movement of the motor vehicle, apart from the orthodox one of sitting in the driving seat and using the engine for propulsion.  He may be coasting down a hill with the gears in neutral and the engine switched off; he may be steering a vehicle which is being towed by another.  As has already been pointed out, he may be sitting in the driving seat while others push, or half sitting in the driving seat keeping one foot on the road in order to induce the car to move.  Finally, as in the present case, he may be standing in the road and himself pushing the car with or without using the steering wheel to direct it.  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 licence and third-party insurance in circumstances which cannot have been contemplated by Parliament."

1. In Tasmania, the meaning of the word "drives" has been extended by s2(4) of the Act, which reads as follows:

"(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."

1. That wording of s2(4) was introduced by an amendment in 1982.  The effect of the subsection, as so worded, was considered by the Full Court in Cooley v Lowe [1984] Tas R 107. The applicant in that case was sitting in the driver's seat of a vehicle that was being towed along the East Derwent Highway from Bridgewater to Gagebrook. The case had been heard and determined by a magistrate on the basis of agreed facts. The Full Court held that the agreed facts were insufficient for the magistrate to be satisfied beyond reasonable doubt that the applicant's conduct amounted to driving.

1. The principal judgment was delivered by Cox J (as he then was), with whom Green CJ and Brettingham-Moore J agreed. His Honour considered the history of s2(4) and the meaning of the words "have charge of" in the Traffic Act 1925, s41(1), which made it an offence to "have charge of any vehicle whilst under the influence of intoxicating liquor". He cited with approval the judgment of Morris CJ in Smith v Westell [1948] Tas R 97, in which it was held that the words "have charge of" had a limited meaning such 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." Referring to the amendment of s2(4) by the 1982 statute, Cox J said:

"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.

For present purposes the amended subsection does not however alter the meaning of the word 'drive', nor require the application of any different test, in a case such as this, than that laid down in Reg v MacDonagh [1974] QB 448."

1. In Allan v Quinlan, ex parte Allan [1987] 1 Qd R 213, the Full Court of the Supreme Court of Queensland considered a charge of unlicensed driving in relation to a man who rode a motor cycle whose engine was not in operation, sitting side-saddle, and travelling at about 10 Kph along a street. It was held that the rider had been driving. At 217, Connolly J, who delivered the principal judgment, drew a distinction between "a vehicle which is caused to coast on a highway and one which is moved a metre or so for the purpose, for example, of getting it to the kerb or clear of the entrance to a house or for some other such purpose". That comment was relied upon by Cox CJ in Burk v Wilton and by Tennent J in Carey v Graue, but in my view it is of no real significance in this case.

1. In my view this was a clear case of driving.  The respondent started the engine of the vehicle and, using the engine as the means of propulsion, backed the vehicle out of one car space, and drove it forward into another.  She must have used the accelerator, the clutch, the foot brake, the gear lever, and the steering wheel in order to carry out those manoeuvres.  The only purpose of the manoeuvres was to give a demonstration of her capacity to drive, and she did that by doing a tiny bit of driving.

1. I do not regard s2(4) as having any significance in this case.  I think this is a case in which the activity in question amounted to driving according to the ordinary use of that word in the English language.  In accordance with R v MacDonagh and Cooley v Lowe, it therefore amounted to driving for the purposes of the Act. Of course, driving for such a short distance could well be regarded as a special circumstance for sentencing purposes. See, for example, Rowe v Visser [2000] TASSC 134.

1. It was conceded before the learned magistrate that the only issue in the case was whether the respondent was driving.  On the hearing of the motion to review, her counsel conceded that, if I concluded her conduct amounted to driving, it would be appropriate not to order a new hearing of the complaint, but to find the case proven and remit the matter for the imposition of penalty.

1. The elements of the two charges and the circumstances relevant to sentencing upon them are such that it would be inappropriate for the respondent to be convicted and sentenced on more than one such charge:  Wood v Major (1992) 3 Tas R 249. I will therefore make no order in relation to the charge under s6(2), which is the less serious charge.

1. For the reasons stated above, the motion to review is allowed, the dismissal of count 1 on the complaint is set aside, I find count 1 proven, and I order that the matter be remitted to the learned magistrate to be further heard and determined according to law.