Director of Public Prosecutions (NSW) v Borg

[2012] NSWSC 1535

Supreme Court

New South Wales

Medium Neutral Citation:

Director of Public Prosecutions (NSW) v Borg [2012] NSWSC 1535

Hearing dates:

26 November 2012

Decision date:

12 December 2012

Before:

Simpson J

Decision:

(i) The order made by the magistrate on 5 July 2012 dismissing the proceedings against the defendant is set aside.

(ii) The matter is remitted to the Local Court for determination in accordance with these reasons.

Catchwords:

APPEAL - prosecution appeal from Local Court - offence of taking part in race between vehicles on a road - no prima facie case - appeal pursuant to Crimes (Appeal and Review) Act 2001 - question of law - meaning of "race" - erroneous test applied - error of law established - appeal allowed - matter remitted to Local Court

Legislation Cited:

Crimes (Appeal and Review) Act 2001
Director of Public Prosecutions Act 1986
Road Transport (Safety and Traffic Management) Act 1999

Cases Cited:

Director of Public Prosecutions v Belani [2005] NSWSC 1013; 64 NSWLR 319

Category:

Principal judgment

Parties:

Director of Public Prosecutions (NSW) (Plaintiff)
Corey Ryan Borg (Defendant)

Representation:

Counsel:
C O'Donnell (Plaintiff)
A Goldsworthy (Defendant)
Solicitors:
S Kavanagh (Solicitor for Public Prosecutions) (Plaintiff)
Tully & Chiper Lawyers (Defendant)

File Number(s):

2012/307269

Judgment

1. On 5 July 2012 the defendant, Corey Ryan Borg, appeared in the Local Court at Penrith in answer to a charge brought under s 40(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999 ("the Safety and Traffic Management Act") (a charge shortly known as "street racing"). At the conclusion of the prosecution case, the magistrate held that the prosecution had failed to establish a prima facie case and dismissed the charge.

1. Pursuant to s 56 of the Crimes (Appeal and Review) Act 2001 ("the Appeal and Review Act") the Director of Public Prosecutions (having, pursuant to s 9(1)(c) of the Director of Public Prosecutions Act 1986, taken over the proceedings) appeals against that order.

1. Section 40 of the Safety and Traffic Management Act is relevantly in the following terms:

"(1) A person must not organise, promote or take part in:

(a) any race between vehicles on a road or road related area ...

(b) ...

(c) ...

(d) ...

unless the written approval of the Commissioner of Police to the holding or making of the race, attempt or trial has been obtained." (italics added)

1. The case the prosecution sought to make against the defendant was given in the statements and oral evidence of two police officers who were assigned to the Highway Patrol, Leading Senior Constable Michael Franich, and Constable Wade Weissel. The evidence of Leading Senior Constable Franich was to the following effect. At about 12.50am on 7 April 2012 he was the driver, and Constable Weissel the passenger, in an unmarked Highway Patrol vehicle on the University of Western Sydney roadway at Werrington in the west of Sydney. That road intersects with the Great Western Highway. Senior Constable Franich stopped his vehicle at the intersection because the traffic control lights in his direction were red. He observed a Nissan Pulsar travelling east in lane 2 on the Great Western Highway (which consists of two lanes in each direction). The Nissan was then travelling at a speed of about 60km/h. The applicable speed limit was 80km/h. Also on the Great Western Highway, travelling at a slightly higher speed in the same direction in lane 1, was a Ford Falcon sedan. The Nissan was driven by the defendant. The Ford Falcon was driven by Craig Otten.

1. As the two vehicles passed the intersection, both "accelerated harshly". They continued to accelerate to a speed in excess of the 80km/h speed limit. They travelled side by side for a distance of 500m.

1. When the traffic lights changed, Senior Constable Franich turned right onto the Great Western Highway and followed the vehicles. The Ford Falcon driven by Otten slowed and returned to a speed of about 80km/h. The Nissan driven by the defendant continued to accelerate. Senior Constable Franich activated the warning devices on his vehicle. At this point the vehicles of the defendant and Otten were well separated. Senior Constable Franich directed the defendant to pull over, which he did. There followed a conversation between them which it is unnecessary to recount.

1. Senior Constable Franich estimated that Otten had driven at an average speed of 97.4km/h, the defendant at 110.76km/h. However, in oral evidence he agreed that these estimates were based on an incorrect premise concerning the distance that had been travelled, and could not be regarded as reliable. It appears that the parties proceeded on the basis that the speed attained by the defendant was about 97km/h.

1. (The statement of Constable Weissel was essentially to similar effect to that of Senior Constable Franich (T 39/40).)

1. After hearing evidence and submissions on behalf of the parties, the magistrate gave a ruling. In its entirety it was:

"The prosecution case taken at its highest and I thank you for the definition of what a race means and I am also going to apply a common sense view of what a race means and what people including this Court would perceive when somebody is racing, that there appears to be from an observation of a race that the two parties are endeavouring to win and it is rare, so rare that in any race that would be going over half a kilometre where the two opposing teams or the two opponents would be racing at the same level which is what was observed by the police for 500 metres, that they were at the same level for that period of time.

It is also not of assistance to the prosecution case that Constable Franich agreed with the proposition that - the question asked, 'Q. Is there anything in the report that you have the expertise to refute?' He said, 'No.' Now he has seen the report. To me it is quite a simple question. Did it look like a race to this magistrate when they are driving side by side for such a period of time? No, it did not. SO I FIND THAT THERE IS NO PRIMA FACIE CASE."

1. The opening sentences in the second paragraph of this extract are a reference to an expert report that had been prepared for the defence, and shown to the magistrate, but which, perhaps by reason of her no prima facie case finding, never found its way into evidence.

1. Earlier, during argument, the magistrate had said:

"So there's no evidence that they're moving backwards and forwards if they're racing as one would expect in a race of any kind. Whether you're racing you know something on the river, the Nepean River, row boats, people go backwards and forwards over a short period of time. Runners, you see them on the television running backwards and forwards, you know overtaking each other incrementally but there's no evidence of that except that they're travelling side by side. In my view a race would mean that there would be some attempt to overtake even incrementally, a small amount, as you often see in races of people of equal strength, and as a matter of vehicles, cars of equal power, that there would be some difference, some slight difference but that's not in evidence. What's in evidence is that they're travelling exactly at the same rate, in fact it was your officer said 'at the same level'."

1. The magistrate ordered costs against the prosecution, which she quantified at $12,000.

The appeal

1. The appeal is brought pursuant to s 56(1)(c) of the Appeal and Review Act. Such an appeal lies only on a ground that involves a question of law alone. Accordingly, in order to succeed on the appeal, the Director must establish error of law.

1. The relevant principles were explained by Johnson J in Director of Public Prosecutions v Belani [2005] NSWSC 1013; 64 NSWLR 319. The asserted error of law on which the Director relies is to be found in the construction the magistrate placed on the word "race" as it appears in s 40(1)(a). The Director contends that the construction the magistrate gave to the word is unduly narrow.

1. In Belani Johnson J, in similar circumstances, rejected what he called an "unduly narrow" construction of the very same provision. There, the magistrate had held that the word "race" in s 40(1)(a) of the Safety and Traffic Management Act must be taken to mean a planned or organised race, and does not extend to an impromptu or unplanned race. Although the asserted misconstruction here is a little different, his Honour's very comprehensive reasoning to that conclusion is helpful and persuasive, and I adopt it. I agree that the word "race" as it appears in s 40(1)(a) is not to be unduly confined. As was indicated in the magistrate's judgment, she had been provided with some dictionary definitions of the word "race". The dictionaries agree that "race" is a contest of speed between participants in an activity, or a contest or competition between individuals, groups etc to be the first to achieve some objective. (I have paraphrased, but the above accurately represents the meanings given to the word by various dictionaries, including The Shorter Oxford and The Macquarie.)

1. In the present case, the magistrate has adopted a construction of "race" that requires, as an essential element, that one participant or another in the contest or competition in fact obtains some advantage over the other or others. That is not in accordance with any dictionary definition, or what I understand to be common usage. The competitive element of a "race" is the desire, and the attempt, to gain that advantage. It does not necessarily lie in one participant or another in fact securing such an advantage. As a matter of common usage, it is well accepted that there are races that result in a tie, or a "dead heat".

1. Moreover, in reaching her conclusion, the magistrate overlooked the evidence that both vehicles "accelerated harshly". While overlooking a particular item of evidence might, alone, not be seen to constitute error of law, it can throw light upon or contribute to an erroneous construction of a term used in a statute. That is what happened here.

1. On behalf of the defendant an argument based upon the evidence of speed was advanced. This was that, taking a maximum speed of 97.4km in a zone at which the applicable maximum is 80km, the driving of the defendant could not be said to amount to racing. It was put that it might be supposed that the vehicles were capable of travelling at a considerably greater speed, and that, therefore, the drivers were not testing the vehicles to the limit of their capacity.

1. Those submissions find no support in the evidence and are pure speculation. In any event, they do not deal with the question of law, but rather seek to support the magistrate's decision on the facts. That is no answer to the asserted error of law. In any event, they are misconceived. It is not necessary, to constitute a race between vehicles, that the vehicles are extended to their maximum capacity as to speed. It must be borne in mind that these vehicles were travelling on a public road, on which other traffic was present, and it might be supposed that the drivers, even if they were in fact "racing", were cognisant of the various risks and dangers that attend excessive speed in such circumstances.

1. Although there are aspects of the magistrate's decision which appear to be referable to the factual question, inherent in the decision is an erroneous test in relation to the meaning of the word "race".

1. Accordingly, the appeal must be allowed and the decision set aside.

1. By s 59 of the Appeal and Review Act, a number of courses are available, including setting aside the order and making such other orders as the Court thinks just. The only realistic course to take is to set aside the order and remit the matter to the Local Court for determination in accordance with these reasons.

1. I make the following order:

(i)   The order made by the magistrate on 5 July 2012 dismissing the proceedings against the defendant is set aside.

(ii)   The matter is remitted to the Local Court for determination in accordance with these reasons.

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Decision last updated: 12 December 2012