Carey v Graue
[2008] TASSC 24
•23 May 2008
[2008] TASSC 24
CITATION: Carey v Graue [2008] TASSC 24
PARTIES: CAREY, Sergeant Glenn William
v
GRAUE, Jarrod Steven
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 3/2008
DELIVERED ON: 23 May 2008
DELIVERED AT: Hobart
HEARING DATE: 15 April 2008
JUDGMENT OF: Tennent 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; Burk v Wilton[2000] TASSC 110; Allan v Quinlan; Ex parte Allan (1986) 3 MVR 343, referred to.
Aust Dig Traffic Law [80]
REPRESENTATION:
Counsel:
Appellant: S J Bender
Respondent: C F McKenzie
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: McLean McKenzie & Topfer
Judgment Number: [2008] TASSC 24
Number of paragraphs: 17
Serial No 24/2008
File No 3/2008
SERGEANT GLENN WILLIAM CAREY v JARROD STEVEN GRAUE
REASONS FOR JUDGMENT TENNENT J
23 May 2008
The respondent was found not guilty of driving a motor vehicle while exceeding the prescribed alcohol limit, contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), 6(1). The issue at the hearing was whether he could be said to have been driving at the time he was intercepted. The appellant has sought a review of the dismissal on the ground that the learned magistrate erred in fact and/or in law in holding that the respondent was not driving for the purposes of the Act.
At around 3.45am on 1 September 2007, the respondent was seated in the driver's seat of his car in the car park of McDonald's in Wilson Street at Burnie. The car's engine was running and the headlights were on. There was a front seat passenger, a Mr Amos. There is no dispute that, while the respondent was in the driver's seat, the car moved within the car park. There is also no dispute that the respondent was breathalysed by police after the car was seen to move and that he returned a positive reading such that, if it were found he had been driving, he would have been convicted of the offence charged.
The respondent's case was that, at about 8pm on the night before, he had parked his car in the McDonald's car park and gone to McGintys, drinking. He stayed there until about midnight. He left there and ended up at Siroccos night club. He thought he went to Greens in between. He left Siroccos at about 3am. He went back to Greens. By then he had met up with Mr Amos. They did not go into Greens, but called a taxi from outside. However, because there were too many people there, they went back to McGintys. At that point, Mr Amos telephoned a second taxi. They waited a couple of minutes but were getting cold. They walked to the respondent's car and got into it.
The respondent told the court that:
"We just sat there to start with and then I think I put the key in to turn the music on and then the heaters."
He also thought his headlights came on at the same time and he described how that could happen. He said that, since they were on when he turned the car off, they would automatically come on when the car was turned on. This explanation for how his type of car operated was supported by one of the police officers who gave evidence.
As to the movement of the car, the respondent told the court he moved the car forward about a car space because there were trees along the side of the car park and he wanted to get a better view along the road to see the taxi. He said:
"I think I just let the handbrake off and rolled it forward."
The respondent said he intended at all times to get into the taxi when it came and that he had not intended to drive the car anywhere. Under cross-examination, the following exchange occurred:
"So you then started the ignition? … Yes.
And then you drove the vehicle forward a couple of spaces? … Yeah, moved it forward.
So you were in control of the vehicle and you drove it forward in the car park? … Yep.
For what purpose? … So we could get a better view of where the taxi come from.
I put it to you that you actually intended to drive home because you'd failed on two previous attempts to get a taxi, what do you say? … No, I wouldn't –wouldn't have done that.
And when police officers actually spoke to you at the window of your vehicle both you and your passenger had your seat belts on? … I'm not sure about that, but yeah, that could have happened.
So you said you moved forward a couple of spaces, how far would you estimate that that distance would be? … Oh, I'm not sure, probably maybe five metres.
And you were in sole control of the vehicle? … Yes.
And the engine was going? … Yeah, I think so."
As to why he might have had his seat belt on, the respondent said maybe just from habit, but he could not remember.
The respondent's passenger, Mr Amos, largely corroborated his evidence about the night's events. As to the movement of the car, however, he said they rolled the car forward by putting a foot on the clutch and just rolling it one space. There was no evidence which could have satisfied the learned magistrate the respondent and his passenger saw the police and stopped as a consequence of that. The respondent said that when he saw the police, he thought he was stationary, and he was not challenged about that.
By consent, the court also had before it a statutory declaration from a taxi company confirming that a taxi had been called at 3.49am on the relevant morning to pick up customers at the McDonald's car park.
Two intercepting police officers gave evidence. Both said the respondent and his passenger were wearing seat belts and they saw the car move about a metre. Constable Mets said the respondent told her he had moved the car, but that he was not going to drive.
The Act, s2(4), provides:
"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 the Act notwithstanding that the motor vehicle is stationary or that he may have alighted from the vehicle."
In Cooley v Lowe [1984] Tas R 107, the court was dealing with a case which involved a person behind the steering controls of a vehicle being towed. The court held:
"(a) 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;
(b) 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;
(c) the test is the same as that laid down in Reg v MacDonagh, [1974] QB 448;
(d) the amendment of the Road Safety (Alcohol and Drugs) Act 1970, s2(4), by Act No 91 of 1982 has not removed the need to establish that the person charged with driving had the capacity to do so, 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, and the substituted words have done no more than to provide that whether or not such a relationship exists will depend on 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."
In Burk v Wilton [2000] TASSC 110, Cox CJ said at par5:
"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.'
His Honour went on to refer to Allan v Quinlan; Ex parte Allan (1986) 3 MVR 343, a Queensland case which dealt with a motor cyclist who had sat side saddle on a bicycle and coasted down a winding hilly road controlling the movement of the bicycle by the use of the handlebars. Connolly J said at 346:
"… 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."
The learned magistrate determined this matter in the following way:
"In this matter I find that the defendant was in the vehicle with the engine running and that the lights were on – headlights were on and I find that he did move that vehicle in the car park a short distance, a very short distance, and only for the purpose of being able to see the taxi that they were expecting to arrive coming and parking in Wilson Street. As a consequence I have a reasonable doubt as to Mr Graue – whether Mr Graue could be said to be driving and I don't think that he had intended to drive. I can't make that inference and I don't find that the case is proved beyond reasonable doubt and I therefore dismiss the complaint."
The obligation was on the police to satisfy the learned magistrate beyond a reasonable doubt of the elements of the charge against the respondent. On the facts before the learned magistrate, there can be no dispute that the respondent got into his car, inserted the key in the ignition and turned the engine on. The headlights came on. There is no dispute the car was moved after he did this and that it probably moved about 5 metres. The learned magistrate had evidence to the effect that:
-The respondent turned the engine on to get the car heater to work because it was cold.
-The respondent moved his car about a car space, either by just releasing the handbrake, or putting his foot on the clutch and letting the vehicle roll.
- The respondent did so to get a better view of the street to see a taxi arrive.
-The respondent and his passenger may have had their seat belts on, the respondent said, out of habit.
-The respondent did not see the police until after the respondent had stopped, the inference available that he was not intending to drive out of the car park and did not stop just because he saw police.
-A taxi was called at 3.49am to collect passengers in the MacDonald's car park.
-The respondent had no intention of driving home.
There was no evidence that the respondent used his hands on the steering wheel to direct the vehicle towards the exit to the car park or that the direction of the vehicle was altered by some means during the distance it moved.
The distinction drawn by Connolly J in Allan's case (supra) is a distinction applicable in the present case. Using, to a large extent, the words of Cox CJ in Burk's case (supra) at par10, although the respondent was seated behind the wheel and the vehicle moved about 5 metres while its engine was running, the evidence did not justify a finding that there was at least a reasonable possibility, if not likelihood, that he would attempt to drive the vehicle and so endanger the public. 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 was intending to undertake a journey which might expose members of the public to danger.
In my view the learned magistrate was correct in expressing herself not satisfied the respondent was driving for the purpose of the Act. The notice to review is dismissed.