CAVUOTO v POLICE - [2010] SASC 343

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CAVUOTO v POLICE
[2010] SASC 343
Judgment of The Honourable Justice Peek
16 December 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - OTHER OFFENCES
TRAFFIC LAW - REGISTRATION AND LICENSING OF PRIVATE VEHICLES - MOTOR TRADERS' PLATES OR MARKS
TRAFFIC LAW - REGISTRATION AND LICENSING OF PRIVATE VEHICLES - UNREGISTERED VEHICLES
Appeal against convictions for driving a motor vehicle while unregistered and uninsured – appellant was driving motor vehicle on South Eastern Freeway on 5 August 2009 – appellant’s vehicle was unregistered and uninsured at the time – appellant had trade plates displayed within vehicle – whether vehicle was registered by virtue of s 10, Motor Vehicles Act 1959 (SA) – whether vehicle was insured by virtue of s 99A(19) of Act.
Held: appeal dismissed – the exemption in s 10 of the Act only applies if the vehicle bears trade plates and “is driven in conformity with the provisions of the Act as to trade plates” – insurance of vehicle under s 99A(19) is only effective if vehicle “driven in pursuance of the trade plates” – the appellant’s using the vehicle to perform a quotation for his business was not a permitted use of trade plates – motor vehicle driven by appellant was therefore unregistered and uninsured – appellant could have been prosecuted for offence of misusing trade plates, however, no unfairness or abuse of process in choice of charges.
Motor Vehicles Act 1959 (SA) ss 9, 102, 10, 62, 66, 99A, 114, Schedule 4; Motor Vehicles Regulations 1996 reg 14, referred to.

WORDS AND PHRASES CONSIDERED/DEFINED
"driven in pursuance of the trade plates"

CAVUOTO v POLICE
[2010] SASC 343
Magistrates Appeal

PEEK J. This is an appeal against convictions of charges recorded by a Magistrate on a complaint that reads as follows:
1.On the 5TH day of AUGUST, 2009 at CRAFERS in the said State drove a vehicle namely a HOLDEN SEDAN on a road namely SOUTH EASTERN FREEWAY the registration of such motor vehicle not then being in force under the provisions of part II of the Motor Vehicles Act, 1959.
Section 9 of the Motor Vehicles Act, 1959
This is a summary offence.
2.On the 5TH day of AUGUST, 2009 at CRAFERS in the said State drove a vehicle namely a HOLDEN SEDAN on a road namely SOUTH EASTERN FREEWAY without there then being in force, in relation to the said motor vehicle, a policy of insurance complying with Part IV of the Motor Vehicles Act, 1959.
Section 102 of the Motor Vehicles Act, 1959.
This is a summary offence.
The relevant legislation
The two offences are created by ss 9 and 102 respectively of the Motor Vehicles Act 1959 (SA) (MVA) which relevantly provide as follows:
9—Duty to register
(1)     A person must not drive an unregistered motor vehicle, or cause an unregistered motor vehicle to stand, on a road.
Maximum penalty: $2500
102—Duty to insure against third party risks
(1)     A person must not drive an uninsured motor vehicle, or cause an uninsured motor vehicle to stand, on a road.
Maximum penalty: $5 000.
…
(3)     It is a defence to a charge of an offence against subsection (1) … to prove that the motor vehicle was driven … in circumstances in which this Act permits an uninsured motor vehicle to be driven on a road.
Other relevant provisions of the MVA in the order in which they appear are as follows:
10—Exemption of vehicles with trade plates
A motor vehicle may be driven on roads without registration if it bears trade plates issued under this Act and is driven in conformity with the provisions of this Act as to trade plates.
(Emphasis added)
62—Issue of trade plates
(1)     If the Registrar is satisfied, on such evidence as the Registrar may require, that a person is engaged in a business in which trade plates are reasonably required for use for a purpose of a kind prescribed by the regulations and stated in the person’s application, the Registrar may, on payment of the prescribed fee, issue to the person such number of trade plates as the Registrar considers necessary, having regard to the person’s business requirements.
66—Use of vehicle to which trade plates are affixed
(1)     A motor vehicle to which trade plates are affixed in accordance with the regulations may be driven on a road for a purpose of a kind prescribed by the regulations and stated in the application for the issuing of the plates.
(2)     If a motor vehicle to which trade plates are affixed is driven on a road other than for a purpose of a kind prescribed by the regulations and stated in the application for the issuing of the plates—
(a)     the driver of the vehicle; and
(b)where the driver of the vehicle is not the person to whom the trade plates were issued—that person,
are each guilty of an offence.
Maximum penalty: $1 250.
99A—Insurance premium to be paid on applications for registration
(1)     An applicant for—
(a)     the registration of a motor vehicle; or
(b)an exemption from registration in respect of a motor vehicle; or
(c)     a permit in respect of a motor vehicle,
must at the time of application pay to the Registrar the premium upon a policy of insurance in terms of Schedule 4 for the motor vehicle in respect of which the application is made.
(19)   An application for the issue of trade plates will, for the purposes of this section, be taken to be an application for registration in respect of a motor vehicle, and the policy of insurance that comes into operation upon the issue of the trade plates is effective (whether or not the trade plates have been transferred) in relation to any motor vehicle driven in pursuance of the trade plates.
(Emphasis added)
114—Certain defences ineffective in actions against insurers
It is not a defence to an action under section 112 or 113 that the insurer is not liable under a policy of insurance by reason of the fact that—
(a)     the policy was obtained by mis-statement or non-disclosure; or
(b)the insured person has committed a breach of or failed to comply with a term, condition or warranty of the policy or a provision of this Part.
Schedule 4—Policy of insurance
…
2      A person so insured warrants that he or she will not—
…
(f)    use the vehicle otherwise than—
…
(ii)if trade plates are affixed to the vehicle—for purposes stated in the application for the issuing of those plates; or
…
…
The trial
The appellant pleaded not guilty to both charges. The trial was conducted largely on the basis of agreed facts which were as follows:
1.The defendant was driving the Holden Sedan WSA-121 on the South Eastern Freeway at Crafers at 12.26pm on 5^th August 2009 which is shown in the disclosed photograph.
2. That the defendant was the owner of WSA-121 since 23^rd November 2001.
3. That the registration for WSA-121 expired on 14^th May 2008.
4.That the defendant is a Director of Commercial Crash Repairs Pty Ltd and held traders plates 6221T as part of that business on 5^th August 2009 lawfully and in accordance with the provisions of the Motor Vehicles Act 1959 as amended.
5.The defendant was on his way to quote a vehicle located in Aldgate at the time of the alleged offending and that the car had within it the trade plate referred to above.
The judgment of the Magistrate
His Honour set out the facts and relevant legislation and stated at [22] and [23] of his judgment:
[22]In my opinion the qualification in s 10 that the vehicle “is driven in conformity with the provisions of (the MVA) as to trade plates” is a clear and unambiguous indicator that the exemption from registration is conditional on the vehicle is being driven in conformity with the purpose for and the use of the trade plate.
[23]On the agreed fact that the defendant’s use of the trade plate was outside of the prescribed purposes. In my opinion the exemption does not apply. (sic)
His Honour considered that the “qualification” in s 10 defeated the appellant’s arguments based on MVA s 99(19), s 114 and Schedule 4. His Honour stated at [32] and [33] of his judgment:
[32]The defendant’s argument is that even if a driver does any or even all of what he or she warrants not to do, by s 114 MVA the insurer is prevented from denying liability under the policy of insurance and in that event the vehicle is insured. That is an ingenious argument but one I reject. It confuses separate concepts of the prohibition against driving an uninsured motor vehicle and the prohibition against the insurer from denying liability under the policy of insurance in certain circumstances.
[33]I am satisfied and so find the company trade plate displayed in the rear window of the defendant’s vehicle did not afford the defendant’s vehicle either registration or insurance because the defendants use of his vehicle outside of the purpose for which the trade plate was issued and was to be used.
The grounds of appeal
The grounds of appeal were as follows:
The learned Magistrate erred in law in finding the appellant guilty on both counts 1 and 2.
The appellant's submissions on the appeal
As to count 1, the appellant submits that the mere displaying of trade plates on a vehicle provides the exemption referred to in s 10 and permits the vehicle to be driven without registration. It was said that such a person may be liable to a prosecution for misuse of trade plates but that such possibility in effect “covered the field” of criminal liability and he could not be prosecuted for a breach of s 9.
As to count 2, the appellant submits that his onus of proof may be discharged by relying upon s 99A(19) which provides:
An application for the issue of trade plates will, for the purposes of the section, be taken to be an application for registration in respect of a motor vehicle, and the policy of insurance that comes into operation upon the issue of the trade plates is effective (whether or not the trade plates have been transferred) in relation to any motor vehicle driven in pursuance of the trade plates.
(Emphasis added)
The appellant essentially submits that if a holder of trade plates proceeds to drive an unregistered and uninsured vehicle while displaying the trade plates on it, he is driving the vehicle in pursuance of the trade plates and is therefore ipso facto exempted from a prosecution under s 102 of the MVA. The reasoning process was said to be as follows:
First, the application for the trade plates was to be taken as equivalent to an application for registration of a motor vehicle by virtue of s 99A(19).
Second, such application generated a relevant insurance policy in relation to the particular journey when the vehicle was driven while displaying the trade plates and driven “in pursuance” of those trade plates.
Third, that although the owner of the trade plates warrants to the insurer pursuant to cl 2(f)(ii) of Schedule 4 that he will not drive otherwise than for purposes stated in the application for the issuing of the trade plates, the insurer is specifically precluded by virtue of s 114(b) of the MVA from avoiding liability to an injured third party on the basis that the insured was in breach of the policy and therefore insurance was in force in relation to the subject journey.
Decision of the appeal
In my view, the Motor Vehicle Act, apart from other things, seeks to establish an objectively ascertainable insurance status of any vehicle, at any time, by reference to the question of whether that vehicle is, or is not, registered. Analysis of that position may be advanced by considering three conceptual levels in the legislative scheme.
At the first level, ss 10 and 102 create related requirements that every vehicle must be registered and insured if it is to be driven on a public road and offences are constituted by breaches of those respective requirements. The act of registration of a vehicle of itself generates the required insurance status for that particular vehicle. Thus, s 99A(1) requires that an applicant for registration of a motor vehicle pay to the Registrar at the time of application the premium upon a policy of insurance in terms of Schedule 4 to the Act for that motor vehicle. Schedule 4 to the Act sets out the details of the insurance cover on that vehicle that is thereby generated.
At the second level, there is a system enacted by Division 2 of Part 2 of the Act providing for a number of exemptions to the requirement to register a motor vehicle. As an example, and of relevance here, s 10 provides:
A motor vehicle may be driven on roads without registration if it bears trade plates issued under this Act and is driven in conformity with the provisions of this Act as to trade plates.
(Emphasis added)
There is a corresponding defence to a prosecution for an offence of driving uninsured contrary to s 102, namely pursuant to s 102(3) “… to prove that the motor vehicle was driven … in circumstances in which this Act permits an uninsured motor vehicle to be driven on a road.” It can be seen that the onus is here on the defendant to prove (on the balance of probabilities) that as a matter of positive fact that the vehicle was driven “in circumstances in which this Act permits an uninsured motor vehicle to be driven on a road.”
At the third level, there is a detailed regime which deals with the matter of insurance from the perspective of injured third parties. In this context, the focus is to ensure that innocent injured third parties may be compensated even in cases where the driver is in breach of various requirements of the Act. It is important to appreciate that provisions designed to prevent an insurer from denying liability in such circumstances on the basis of wrongdoing on the part of the driver is not to be interpreted in a way that in fact alters or negates that wrongdoing itself. The fact that an insurer may be precluded from relying on wrongdoing of the driver can in no way alter the position of that driver in the quite different context of a prosecution against him in relation to that very wrongdoing.
Decision in relation to the charge in count 1
As to the appellant’s argument on count 1, I consider that the exemption in s 10 only applies if the vehicle bears trade plates and is driven in conformity with the provisions of the Act as to trade plates. In my view, the meaning of this section is that if an unregistered motor vehicle bearing trade plates is driven other than in conformity with the provisions of the Act as to trade plates, the offence will be committed.
The appellant admitted at trial that his use of the trade plates to perform a quotation for his business was not a permitted use of the trade plates.[1] Accordingly, he was not entitled to the benefit of the exemption in s 10.
[1] Section 62(1) empowers the Registrar of Motor Vehicles to issue trade plates if the Registrar is satisfied that the applicant “is engaged in a business in which trade plates are reasonably required for use for a purpose of a kind prescribed by the regulations and stated in the person’s application”. The relevant purposes are set out in reg 14 of the Motor VehiclesRegulations 1996 (as in force as at 5 August 2009). It was agreed at trial that the purpose for which the appellant drove the motor vehicle was not a prescribed purpose.
Decision in relation to the charge in count 2
As to the appellant’s argument in relation to count 2, I refer to an example I put in the course of argument, namely that of a holder of trade plates putting them on his wife’s unregistered and uninsured car so that she can go shopping for groceries. It would be a complete misuse of the English language to say that that vehicle is driven “in pursuance” of those trade plates and it would equally be so if it is the holder of the trade plates who drives an unregistered and uninsured car for a similar purpose.
The word “pursuance” is relevantly defined[2] to mean “The action of proceeding in accordance with a plan, direction, or order”.
[2] Shorter Oxford English Dictionary.
I consider that “in pursuance of” trade plates means neither “while displaying trade plates” nor “in pretended pursuance” of trade plates. Rather, it means that the driver drives the vehicle while relying upon registration and insurance attaching by virtue of the legislation as it applies to the proper or prescribed use of trade plates.
As to the argument that the insurer is precluded from denying liability on the basis of the wrongdoing of the driver, I consider for the reasons stated above that this matter has no relevance to a prosecution of a criminal offence under s 9 or s 102.
Finally, as to the argument that the appellant could have been prosecuted for an offence of misusing trade plates, the short answer is that he probably could have been, but this does not prevent the prosecution, in the circumstances of this particular case, from choosing to prosecute for the charges laid in the complaint. There was here, in my view, no aspect of unfairness or an abuse of process in doing so.
In the present case it was not disputed that the use of the trade plates was improper and not in conformity with the provisions of the Act as to the use of trade plates. In my view, it follows that the appellant did not discharge his onus of establishing that the vehicle was insured in the sense relevant to a defence to the charge under s 102(3).
Conclusion
Although the reasons of the Magistrate were relatively brief, they were nonetheless correct, as was his conclusion that the appellant was proven beyond reasonable doubt to be guilty of both charges.
There was originally an appeal against penalty as well as conviction but this was very properly withdrawn at the commencement of the hearing of the appeal. Accordingly, I now dismiss both the appeal against conviction and the appeal against penalty.