Di Gregorio v Baird
[2013] WASC 259
•12 JULY 2013
DI GREGORIO -v- BAIRD [2013] WASC 259
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 259 | |
| Case No: | SJA:1086/2012 | 16 APRIL 2013 | |
| Coram: | HALL J | 12/07/13 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Acquittals set aside Matter remitted to Magistrates Court to be determined according to law | ||
| B | |||
| PDF Version |
| Parties: | GIUSEPPE DI GREGORIO RODERICK ALEXANDER BAIRD |
Catchwords: | Criminal law Prosecution appeal against acquittal Driving without a licence Using an unlicensed vehicle Whether motorised pedal cycle is a motor vehicle Whether falls within exception Whether magistrate failed to take into account statutory definition relating to power output |
Legislation: | Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 56 Road Traffic (Licensing) Regulations 1975 (WA), reg 3, reg 3AA Road Traffic (Vehicle Standards) Regulations 2002 (WA), cl 1 Glossary Road Traffic Act 1974 (WA), s 5, s 15, s 42, s 49 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
RODERICK ALEXANDER BAIRD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE E K LANGDON
File No : FR 3568 of 2012, FR 3569 of 2012
Catchwords:
Criminal law - Prosecution appeal against acquittal - Driving without a licence - Using an unlicensed vehicle - Whether motorised pedal cycle is a motor vehicle - Whether falls within exception - Whether magistrate failed to take into account statutory definition relating to power output
(Page 2)
Legislation:
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 56
Road Traffic (Licensing) Regulations 1975 (WA), reg 3, reg 3AA
Road Traffic (Vehicle Standards) Regulations 2002 (WA), cl 1 Glossary
Road Traffic Act 1974 (WA), s 5, s 15, s 42, s 49
Result:
Leave to appeal granted
Appeal allowed
Acquittals set aside
Matter remitted to Magistrates Court to be determined according to law
Category: B
Representation:
Counsel:
Appellant : Mr D Leigh
Respondent : No appearance
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : No appearance
Case(s) referred to in judgment(s):
(Page 3)
- HALL J:
Introduction
1 This is a prosecution appeal against the acquittal of the respondent on two charges under the Road Traffic Act 1974 (WA) (RTA) arising from the use of a motorised bicycle. The issue to be determined is when is such a bicycle a motor vehicle for the purposes of the RTA. That issue depends upon the interpretation of relevant provisions of the RTA and the Road Traffic (Licensing) Regulations 1975 (WA) (the licensing regulations).
2 The respondent did not participate in this appeal. Attempts by the appellant to serve the appeal notice were unsuccessful and information indicated that he had gone overseas. He subsequently contacted a police officer and requested that any communication with him be by way of email. I subsequently granted an application by the appellant to serve the respondent with the relevant papers by email.
3 The respondent did not file a notice of intention to be heard on the appeal nor did he appear at the hearing on 16 April 2013. Notification of that hearing had been sent to the respondent by email on 8 January 2013.
4 At the hearing of the appeal counsel for the appellant advised that the respondent had been in email contact to enquire whether he was entitled to appear and represent himself at the appeal. Counsel provided the relevant details to the respondent. Notwithstanding the respondent's failure to appear at the hearing I made an order that he be provided with a transcript of the hearing and be given an opportunity to make written submissions within seven days if he wished to do so. No such submissions were received.
5 For the reasons that follow I am satisfied that leave to appeal should be granted, the appeal allowed and the acquittals set aside.
Facts
6 On 4 January 2012 an order was made in the Fremantle Magistrates Court that the respondent be disqualified from driving. The transcript indicates the disqualification was until 14 January 2013. Accordingly, as at 16 February 2012 the respondent had no authority to drive any motor vehicle for which a licence was required.
7 At 11.45 am on Thursday, 16 February 2012 the respondent rode a motorised bicycle on South Street, Kardinya. The bicycle did not have a
(Page 4)- registration plate. The respondent was stopped by police and it was established that the bicycle had never been licensed and was not subject to any permit. It was also established that the respondent was not authorised to drive a motor vehicle due to his continuing suspension.
9 The respondent entered a written plea of not guilty and the matter was set down for a trial on 16 July 2012. He did not appear at the trial. However, these being simple offences, the magistrate was satisfied that the respondent had been served with the necessary papers and that it was appropriate to proceed in his absence pursuant to s 55 of the Criminal Procedure Act 2004 (WA).
10 At the hearing the magistrate queried whether a motorised bicycle of the type used by the respondent was a motor vehicle. The prosecutor said that it was because it had a power output of in excess of 200 watts. The magistrate asked how the police were able to determine the power of the engine and was advised that an expert had examined the bicycle. The expert, Mr Matthew Day, was then called to give evidence.
11 Mr Day stated that he is a qualified motorcycle mechanic and motorcycle dyno technician. Part of his qualifications included training to test the power output of motorcycles. Mr Day had undertaken tests of the motorised bicycle seized from the respondent. These tests showed that the motorised bicycle had a power output of 980 watts and a maximum speed of 63 km per hour.
12 A photograph of the bicycle was produced and shown to Mr Day. The magistrate then asked:
(Can I ask) Whether that motorised pushbike is also known as a power assisted pedal cycle?---Yes.
It's the same thing?---Yes. It's just a Chinese made after market built-in engine and they are an absolute death trap. There's only two bolts that hold it to the frame and they actually use a water reticulation pipe for a fuel arm which just goes hard and pours fuel all over the engine while it is running. None of them have been any good so far. The speed is usually a bit of a worry for them. That's able to do 65 kilometres per hour and they are usually on a footpath while they are doing it (ts 5 - 6).
(Page 5)
Magistrate's decision
13 After a short exchange with the police prosecutor the magistrate concluded that the charges were not proven. She gave the following reasons for that conclusion:
When I read the definition of motor vehicle under s 5 of the Road Traffic Act, the definition under motor vehicle, paragraph (b) - firstly it says under paragraph (a):
In relation to authorisation to drive means a vehicle that is built to be propelled by a motor that forms part of the vehicle
And (b):
Otherwise means a self-propelled vehicle that is not operated on rails and includes a trailer, semi-trailer or caravan whilst attached to the vehicle but does not include a power assisted pedal cycle.
The evidence of Mr Day is that this vehicle or motor vehicle, alleged motor vehicle, this motorised pushbike is the same thing as a power assisted pedal cycle. On that basis the charges are not proved and the accused is acquitted of both charges.
14 The evident meaning of her Honour's reasons is that she considered that the bicycle in this case fell within the exception provided for in s 5 for power assisted pedal cycles. She came to that conclusion on the basis of the ordinary meaning of the term 'power assisted pedal cycle' and the acceptance by Mr Day that the bicycle in this case could be described using that term. What her Honour does not appear to have taken into account is the particular meaning that the term has under the RTA and associated regulations.
Relevant statutory provisions
15 The word 'vehicle' is defined in s 5 of the RTA as follows:
vehicle includes -
(a) every conveyance, not being a train, vessel or aircraft, and every object capable of being propelled or drawn, on wheels or tracks, by any means; and
(b) where the context permits, an animal being driven or ridden;
16 The definition of 'vehicle' is clearly wide enough to encompass a bicycle whether motorised or not. However, not every vehicle is required to be licensed. Section 15 of the RTA provides that a vehicle licence is (Page 6)
- required for a vehicle prescribed in the regulations. The relevant regulations are the licensing regulations.
3AA. Vehicles required to be licensed
(1) A vehicle for which a licence is required by section 15(1) of the Act is any motor vehicle or trailer except as described in subregulation (2).
(2) The exception in subregulation (1) applies to -
(a) an agricultural implement being towed on a road by another vehicle if the towing vehicle is the subject of a vehicle licence or permit; or
(b) an unlicensed vehicle of any type being towed on a road by a tow truck that is the subject of a vehicle licence or permit; or
(c) a motor vehicle that is designed so as not to be capable of a speed exceeding 10 km/h; or
(d) a power assisted pedal cycle.
19 If a motorised bicycle is a motor vehicle for the purposes of reg 3AA of the licensing regulationsthen a licence is required unless one of the exceptions in reg 3AA(2) applies. There is an exception in reg 3AA(2)(d) for a power assisted pedal cycle. That term is not defined in the licensing regulationsbut is defined in s 5 of the RTA. That definition applies to the licensing regulations by virtue of s 44(1) of the Interpretation Act 1984 (WA).
20 The definition of 'power assisted pedal cycle' in the RTA is as follows:
power assisted pedal cycle means a vehicle designed to be propelled through a mechanism operated solely by human power, to which is attached one or more auxiliary propulsion motors having a combined maximum output not exceeding 200 watts;
(Page 7)
21 Where a vehicle that is required to be licensed is not licensed and is used on any road the person using the vehicle commits an offence: s 15(3) RTA.
22 It is also an offence for a person to drive a motor vehicle on a road whilst not authorised: s 49(1)(a). The definition of a 'motor vehicle' as used in s 49(1)(a) is contained in s 5 of the RTA and is materially the same as the definition contained in the vehicle standards regulations.
23 The authority to drive a motor vehicle arises from pt IVA of the RTA. Section 42 provides that a driver licensing scheme is to be established by regulations. The regulations may provide for different categories of licences relating to the type of motor vehicle a person is authorised to drive. The relevant regulations are the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (the authorisation to drive regulations).
24 The authorisation to drive regulations provide for different classes of drivers licences. A licence is required to drive a motor vehicle unless an exemption applies. Regulation 56 provides for a number of specific exemptions. At the relevant time that regulation provides as follows:
56. Certain motor vehicles may be driven without licence
(1) A person may drive on a road a motor vehicle referred to in subregulation (2) even though the person is not authorised to do so other than by this regulation.
(2) The motor vehicles that this regulation authorises a person to drive on a road are as follows -
(a) a motor vehicle used only on a railway or tramway;
(b) a motor vehicle designed to be controlled by a person walking next to it;
(c) a motor vehicle propelled by a motor having a maximum power output not exceeding 200 W;
(d) a motorised wheelchair that cannot travel at a speed above 10 km/h;
(e) a motor vehicle used for the purpose of road maintenance or road construction if it is -
- (i) situated between traffic signs on a road maintenance or road construction site; and
(ii) operated for, by, or under the control of, a government department, government instrumentality, statutory authority or local government; and
(iii) fitted with a light displaying intermittent yellow flashes (or flashes of another colour or colours approved by the Director General).
25 Accordingly, a drivers licence is required to drive a motorised bicycle if it is powered by a motor with an output of in excess of 200 watts. The type of licence required will depend upon the engine capacity and maximum speed. Suffice to say that at the relevant time an 'R' class licence would have been required to drive a motorised bicycle of the type used by the respondent.
Legislative history
26 The term 'power assisted pedal cycle' was inserted into the RTA by the Road Traffic Amendment (Power Assisted Pedal Cycles) Act 1991 (WA). This Act amended the definition of 'motor vehicle' by providing an exception for a 'power assisted pedal cycle'. That term was defined as being a vehicle designed to be propelled through a mechanism operated solely by human power to which is attached one or more axillary propulsion motors having a combined maximum output not exceeding 200 watts.
27 The Second Reading Speech by the then Minister for Police makes it clear that the intention of the Road Traffic Amendment (Power Assisted Pedal Cycles) Act was to exempt certain power assisted pedal cycles and persons using them from the licensing requirements of the RTA. In particular, the Hon Minister said:
This Bill seeks to introduce legislation which will allow the use of power assisted pedal cycles on the road without the necessity of either the rider or the cycle being required to comply with the normal licensing requirements ... tests conducted by the police department have found the modified pedal cycles, which have a maximum speed of 25 kilometres even when being pedalled are safe and suitable for use. (Hansard 6552)
28 The amendments were intended to exempt some power assisted bicycles that would otherwise have fallen within the terms of the RTA and (Page 9)
- the regulations. Were it not for the exemption the fitting of a motor to a bicycle would make it a motor vehicle both for the purposes of the RTA and the relevant regulations. This dispenses with any possible suggestion that because pedal bicycles are not motorised when originally built they cannot become a motor vehicle by being later fitted with a motor. Clearly they can, and it was to deal with this possibility that the limited exception was provided.
Merits of the appeal
30 The magistrate concluded that the motorised bicycle in this case did not need to be licensed because it fell within the exemption for power assisted pedal cycles. However, that was a term with a limited definition. It is clear that her Honour did not have regard to that definition. Had she done so she could not have been satisfied that the bicycle in this case fell within the exemption given the clear evidence that it had a power output of 980 watts.
31 I note that the magistrate put to the expert witness, Mr Day, that the bicycle could be described as a 'power assisted pedal cycle'. Clearly in answering 'yes' to that question, he was only responding to whether those words could be used in a general sense to describe the bicycle. There is nothing to indicate that he was aware of the relevant statutory definition and his evidence regarding the power of the bicycle was unequivocal. In the circumstances it was neither fair nor appropriate to put a defined term to the witness and ask him to comment on what was, in effect, a question of law.
32 The question of whether the motorised bicycle was a motor vehicle for the purposes of the Act was the only issue at the hearing before the magistrate. Section 55(4)(b) of the Criminal Procedure Act provides that the court may take as proved any allegation in the prosecution notice containing the charge that was served on the accused where a hearing under that section occurs. There was no obvious reason not to take all other allegations in the charges as having been proved, namely that the
(Page 10)- respondent rode the bike at the time and place alleged, that it was not licensed and that he was not authorised to ride it being subject to a license suspension at the time. However, the magistrate did not make findings in that regard since it was unnecessary for her to do so given her conclusion on whether the bicycle was a motor vehicle. For that reason it will be necessary to remit the matter back to the Magistrates Court to be dealt with according to law.
Conclusion
33 In these circumstances, leave to appeal must be granted, the appeal allowed, the acquittals set aside and the matter remitted to the Magistrates Court to be dealt with according to law. If there is to be a new hearing it will be necessary for the respondent to be given notice of it. However, given the lapse of time the appellant may wish to consider whether it is still appropriate to pursue these charges.
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