FREEMAN v Police - [2008] SASC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FREEMAN v POLICE
[2008] SASC 24
Judgment of The Honourable Justice David
11 February 2008
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISCELLANEOUS GROUNDS ON WHICH NEW TRIAL GRANTED OR REFUSED
Appeal against conviction - three driving offences allegedly committed on Light Square, Adelaide - incorrect legislative definition of "road" provided to the court during trial - whether appellant "drove" the vehicle - whether magistrate erred in considering wrong definition of "road" - whether magistrate's reasons were inadequate - whether matter should be remitted for re-trial if appeal successful.
Held: Appeal dismissed with respect to first charge - appeal allowed with respect to second and third charges - appellant did "drive" the motor vehicle - magistrate erred in considering the wrong definition of "road" - magistrate's reasons adequate - interest of justice requires matter to be remitted for re-trial.
Criminal Law Consolidation Act 1935 (SA) s 86A; Magistrates Court Act 1991 (SA) s 42(5); Motor Vehicles Act 1959 (SA) s 5, s 74, s 102; Road Traffic (Miscellaneous) Regulations 1999 (SA); Road Traffic Act 1961 (SA) s 5, s 5A, s 6A, s 47, referred to.
Mercorella v Page (1975) 12 SASR 431, applied.
Bassell v McGuiness (1981) 29 SASR 508; Police v Thompson (2006) 45 MVR 37, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"driving"

FREEMAN v POLICE
[2008] SASC 24
Magistrates Appeal
DAVID J.
Introduction

This is an appeal against a magistrate’s decision to convict the appellant for three offences involving the driving of a motor vehicle.
Background
The appellant was charged with the offences of:
·illegal use of a motor vehicle (contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA)) (“Count 1”);
·driving while under the influence of intoxicating liquor (contrary to s 47 of the Road Traffic Act 1961 (SA)) (“Count 2”); and
·driving without a licence (contrary to s 74 of the Motor Vehicles Act 1959 (SA)) (“Count 3”).
All three offences are alleged to have occurred on 17 September 2006. The prosecution case was that on that day there was a function held on Light Square, Adelaide. During the course of the function, a security guard’s vehicle was parked on a grassed area situated on the north-east corner of Light Square. The security guard was nearby, and had left the keys in the ignition of the vehicle, with the doors closed but not locked. The prosecution led evidence that the appellant sat in the driver’s seat of the vehicle. The ignition was then heard to “turn over” and the vehicle “bunny hopped” a distance of approximately 1.5 m. The security guard gave evidence that the appellant appeared to be significantly intoxicated by liquor. He told the appellant to leave the area and then called the police. The appellant was seen by police shortly afterwards in Hindley Street, Adelaide, and when they approached him he attempted to run away.
The appellant pleaded not guilty to all counts, but in evidence did not dispute that he sat in the vehicle, that he was intoxicated and that he did not hold a current driver’s licence. However, the appellant maintained that the door of the vehicle was open, his legs were outside of the vehicle at all times, he did not turn the ignition of the vehicle and he did not drive the vehicle. He said he merely got into the vehicle as a prank, having first had a friendly conversation with the security guard. The main issues at trial were whether or not the appellant “drove” the vehicle and whether Light Square was a “road”.
At trial, the prosecutor tendered relevant sections of the Road Traffic Act, the Road Traffic (Miscellaneous) Regulations 1999 (SA) and the Motor Vehicles Act. One of these sections, s 5 of the Road Traffic Act, had been amended between the date of the alleged offence and the date of trial. The prosecutor tendered a copy of the amended version of this section, rather than the version in force at the time of the alleged offence.
On 28 August 2007, the magistrate found the appellant guilty of all three offences. The matter was adjourned to 20 September 2007, for sentencing submissions. On 20 September 2007, the magistrate was advised that the court had been provided with an incorrect version of s 5 of the Road Traffic Act. The magistrate indicated that this provision had been relied on in determining whether the charges had been proved. It appears that the prosecution requested that the matter be re-opened and the parties were subsequently granted leave to provide written submissions with respect to the correct statutory definition of “road”. The prosecution indicated that it would provide a written submission (which it did later provide), would not tender any regulations, and asked the court to take judicial notice of Light Square, its environs, and the Road Traffic (Miscellaneous) Regulations.
On 24 October 2007, the magistrate ruled that she would not re-open the matter. The magistrate then sentenced the appellant in relation to the three offences, and ordered that he be disqualified from holding or obtaining a driver’s licence for three years and fined $1,500.
Driving
In relation to all three counts, the appellant argues that the magistrate erred in finding that the appellant “drove” the vehicle.
There are a number of authorities that have attempted to define “driving”. Counsel for the appellant referred to the authority of Bassell v McGuiness.[1] That case involved consideration of whether a person seated in a vehicle being towed by another car was “driving”, as the term is used in the Road Traffic Act. The test applied in that case was whether or not the person was driving the car “in the ordinary sense of the word.”[2] I find this test to be of limited assistance in this case, in determining whether the appellant was driving.
[1] (1981) 29 SASR 508.
[2] Bassell v McGuiness (1981) 29 SASR 508, 512.
Counsel for the respondent referred to the authority of Police v Thompson.[3] That case again involved consideration of the definition of “driving” in the context of the Road Traffic Act. The respondent in that case was moving his vehicle on his own property when the accelerator “stuck”, and the vehicle ended up on the road. The judge indicated that control over the movement and propulsion of a vehicle is a factor in determining whether a person is “driving”, but that it is not necessarily decisive.
[3] (2006) 45 MVR 37.
In the case of Mercorella v Page,[4] the appellant was seated on a motorcycle, rolling down a hill. The engine of the motorcycle was apparently not in working order. The question was whether this action constituted driving under s 102 of the Motor Vehicles Act. Walters J found that the appellant “did not ‘drive’ the motor cycle, in the ordinary sense of that term.”[5] However, he said that for the purposes of the statutory provision, “the word ‘drive’ is wide enough to include any physical act which actually propels or causes a motor vehicle to be propelled or put into motion.”[6] I can see no reason why this definition of drive should not be applied to the offences charged in this case.
[4] (1975) 12 SASR 431.
[5] Mercorella v Page (1975) 12 SASR 431, 433.
[6] Ibid.
In respect of whether or not the appellant drove the motor vehicle, the magistrate said:
I indicate that I am satisfied beyond reasonable doubt that the defendant drove the vehicle in question by turning on the ignition and “bunny hopping” the car about one and a half metres forward.
The magistrate therefore made a finding that the appellant turned on the ignition and that, as a consequence, the motor vehicle moved about 1.5 m. This finding satisfies the definition of driving set out by Walters J in Mercorella v Page.[7]
[7] (1975) 12 SASR 431.
I therefore find that there was no error in the magistrate finding that the appellant “drove” the vehicle, in relation to all three counts.
Road
The appellant argues that, in relation to Count 1, the prosecution needed to prove that the offence took place on a “road”, even though this is not an essential element of the offence, and that the magistrate considered the wrong definition of “road”.
The offence of illegal use of a motor vehicle is created by s 86A of the Criminal Law Consolidation Act 1935 (SA). That section states:
A person who, on a road or elsewhere, drives, uses or interferes with a motor vehicle without first obtaining the consent of the owner of the vehicle is guilty of an offence.[8]
In that section,
… drive, driver’s licence, motor vehicle, road and owner have the same meaning as in the Road Traffic Act 1961.[9]
[8] Criminal Law Consolidation Act 1935 (SA) s 86A(1).
[9] Criminal Law Consolidation Act 1935 (SA) s 86A(7).
The appellant argues that because the prosecution case, in relation to Counts 2 and 3, was that the offending occurred on a road, by implication, Count 1 must have also occurred on a road. Further, the appellant suggests that because the court was given the wrong definition of a “road” under the Road Traffic Act, the magistrate has erred in finding the appellant guilty of this offence.
My view is that the wording of s 86A(1) is broad enough to create an offence of illegal use no matter where the vehicle is located. That much is made clear by the use of the words “or elsewhere”. There is no legal basis for importing into Count 1 legal elements which are not established by the legislation and which are not included in the particulars of the charge. As such, for Count 1, it is irrelevant what definition of “road” was provided to the court.
With respect to Count 1, there was no error concerning the definition of a “road”.
In relation to Count 2, the appellant argues that the magistrate was in error in using the wrong definition of “road” when deciding whether or not the offence had been proved.
Driving under the influence of intoxicating liquor, Count 2, is an offence created by s 47(1) of the Road Traffic Act, which states that:
(1)A person must not—
(a) drive a vehicle; or
(b) attempt to put a vehicle in motion,
while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle.
In addition s 5A of the Road Traffic Act establishes that the Act applies to vehicles and drivers “on roads”. It was therefore an element of the offence that the driving occurred on a “road”.
The definition of “road” under the Road Traffic Act, at the date of the alleged offences, was
… an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving of motor vehicles.[10]
[10] Road Traffic Act 1961 (SA) s 5(1) (as at 17 September 2006).
In addition, the Road Traffic Act stated that
[a] reference in this Act to a road includes a reference to a road-related area unless it is otherwise expressly stated[11]
and defined a road-related area as
… any of the following:
(a)an area that divides a road;
(b)a footpath or nature strip adjacent to a road;
(c)an area that is not a road and that is open to the public and designated for use by cyclists or animals;
(d)an area that is not a road and that is open to or used by the public for driving or parking vehicles;
(e)any other area that is open to or used by the public and that has been declared by regulation to be a road-related area.[12]
[11] Road Traffic Act 1961 (SA) s 6A (as at 17 September 2006).
[12] Road Traffic Act 1961 (SA) s 5(1) (as at 17 September 2006).
However, the legislation provided to the court at trial (showing the amendment after the date of the offences) defined a road as
… an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving of motor vehicles;[13]
and a road-related area as
… any of the following:
(a)an area that divides a road;
(b)a footpath or nature strip adjacent to a road;
(c)an area that is not a road and that is open to the public and designated for use by cyclists or animals;
(d)any public place that is not a road and on which a motor vehicle may be driven, whether or not it is lawful to drive a motor vehicle there.[14]
[13] Road Traffic Act 1961 (SA) s 5(1) (as at the date of trial).
[14] Road Traffic Act 1961 (SA) s 5(1) (as at the date of trial).
The magistrate has indicated that she relied on the incorrect definition of a “road”, which was provided to the court, when determining whether Count 2 had been proved. However, the magistrate has not identified which placita was relied on when coming to this conclusion. It is evident from a review of the definition provided to the court, that the magistrate could have found that Light Square was a road pursuant to placita (d). In so doing, she would have erred, because placita (d) did not apply in the form provided to the magistrate at the time the offences were committed.
The appellant therefore argues that there is every chance that the magistrate has applied the wrong law or, at the very least, her reasons are unclear as to why she has found Light Square to be a road, and the finding of guilt in relation to Count 2 should be quashed.
Counsel for the respondent argues that even if the magistrate had been provided with the correct legislation, it would not have made any difference. The respondent argues that placita (a) of both the correct and incorrect definitions of the Road Traffic Act, namely, “an area that divides a road”, are applicable. Therefore, as there was no amendment to that aspect of the definition, the mistake in being referred to the wrong legislation is immaterial.
I cannot accede to the respondent’s argument. The fact that the magistrate was referred to the wrong legislation, and has not indicated the basis on which she deemed Light Square to be a road, is unsatisfactory. The basis for why she came to a conclusion that it was a road should have been articulated, because it may have depended on certain findings of fact. My view is that whether Light Square is “an area that divides a road” or not, or satisfies an alternative placita set out in the definition which applied at the date of the alleged offending, requires a proper assessment of the evidence. That was not done in this case and the appeal should be allowed in relation to Count 2.
In relation to Count 3, the appellant again argues that the magistrate erred in using the wrong definition of a “road”, but on a different basis.
The offence of driving without a licence, Count 3, is created by s 74(1) of the Motor Vehicles Act, which states that:
(1)     Subject to this Act, a person who—
(a)     drives a motor vehicle of a particular class on a road; and
(b)     is not authorized to drive a motor vehicle of that class on a road but has previously been so authorized under this Act or the law of another State or a Territory of the Commonwealth,
is guilty of an offence.
The appellant submits that the magistrate was in error in failing to consider the definition of road provided by the Motor Vehicles Act when deciding whether or not the offence had been proved.
The definition of “road” under the Motor Vehicles Act, that applied at the time of the alleged offending, was
… an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving of motor vehicles.[15]
[15] Motor Vehicles Act 1959 (SA) s 5(1) (as at 17 September 2006).
In addition, that Act stated that
[a] reference in this Act to a road includes a reference to a road-related area unless it is otherwise expressly stated,[16]
and defined a road-related area as
… any of the following:
(a)an area that divides a road; or
(b)a footpath or nature strip adjacent to a road; or
(c)an area that is not a road and that is open to the public and designated for use by cyclists or animals; or
(d)an area that is not a road and that is open to or used by the public for driving or parking vehicles; or
(e)any other area that is open to or used by the public and that has been declared by the Minister under section 6 to be a road-related area.[17]
[16] Motor Vehicles Act 1959 (SA) s 5(2b) (as at 17 September 2006).
[17] Motor Vehicles Ac t1959 (SA) s 5(1) (as at 17 September 2006).
In dealing with the legal elements of all three charges, the magistrate said:
I indicate that I am satisfied beyond reasonable doubt that the defendant drove the vehicle in question by turning on the ignition and “bunny hopping” the car about one and a half metres forward. I am satisfied that the driving was on a road related area pursuant to section 5 of the Road Traffic Act 1961 (“the act”). Section 5A of the act states that the act applies to vehicles on roads. Roads include road related areas pursuant to section 6A of the act. I am further satisfied that the defendant was driving under the influence. As previously indicated there is no dispute that the defendant was grossly intoxicated. As I am satisfied that he was driving, it follows that I am further satisfied that he was driving whilst so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle. It is not disputed that he had no driver’s licence. I am therefore satisfied that, at the time of driving, he was driving without a licence.
It follows that I find the defendant guilty of the three offences with which he is charged.
It appears from this passage that the magistrate did not consider the definition of a road under the Motor Vehicles Act when deciding whether Count 3 had been proved beyond a reasonable doubt.
The respondent argues that even though the magistrate did not refer to the definition of a road provided by the Motor Vehicles Act, it does not make any difference because placita (a) of the Road Traffic Act and placita (a) of the Motor Vehicles Act are identical.
Again, I am unable to accede to this argument. The fact that the magistrate has not indicated the basis on which she deemed Light Square to be a road makes it impossible for this Court to determine whether the magistrate would have found the appellant guilty had she turned her mind to the definition provided by the Motor Vehicles Act.
As the magistrate appears to have erred in applying the Road Traffic Act instead of the Motor Vehicles Act, I allow the appeal in relation to Count 3.
Inadequate Reasons
The appellant also argues that the magistrate’s reasons for judgment are inadequate and demonstrate flawed reasoning. The appellant has a number of specific complaints, including that the magistrate:
·failed to articulate and evaluate the differences between all the witnesses on critical disputed issues;
·set out findings of fact prior to assessing the strength of the defence evidence;
·did not direct herself that if his account was reasonably possible he was entitled to an acquittal;
·failed to disclose the reason for rejecting the defence evidence;
·failed to articulate and evaluate inconsistencies within the prosecution case; and
·failed to apply the facts to the relevant legal tests.
I can see no appealable error in the reasons provided by the magistrate in this case. It is important to remember the purpose of a magistrate’s reasons. The extent of the reasons that should be given by a magistrate in a criminal trial will depend on the circumstances of the case.[18] There is no need to detail every aspect of the case presented. This would be impractical. The aim of providing reasons is to allow the parties involved to know the basis for the decision and to allow an appellate court to understand the reasoning of the lower court.[19] The reasons in this case allow that.
[18] W, JS v Police (2005) 240 LSJS 99, 102.
[19] Ibid.

The magistrate has clearly set out the evidence given by the prosecution and defence witnesses on the key issues at trial. The reasons indicate that the magistrate found the prosecution witnesses to be “honest and believable”, and the appellant’s evidence “improbable in the extreme”. Given the finding that the appellant’s evidence was highly improbable, there was no reason for the magistrate to direct herself that the appellant would be entitled to an acquittal if his account were reasonably possible. The magistrate rejected the appellant’s evidence due to his intoxication at the time of the alleged offending, because he had earlier told police that he had no recollection of the incident, and because he failed to give an adequate explanation for running away from the police. The magistrate recognised that there were inconsistencies within the prosecution case with respect to “estimations of time and distance”, but found that those inconsistencies did not negatively impact on the credibility of the prosecution witnesses.
The magistrate’s reasons do not set out all the legal elements of the three offences and explain in detail how the facts of the case were applied to those elements. It can be inferred from the reasons that the magistrate considered the legal definition of driving, even though the test is not specifically identified, as the facts applicable to that definition are set out, ie “turning on the ignition” and “bunny hopping the car about one and a half metres forward”. However, the magistrate has failed to set out the definition of a “road” under any of the relevant Acts or to discuss how the facts apply to those definitions. Nevertheless, I have already found that there was an error with respect to the magistrate’s finding that Counts 2 and 3 occurred on a “road”, and that the prosecution did not need to prove Count 1 occurred on a road. As such, this oversight is of no significance.
The magistrate’s reasons were adequate in the circumstances of this case.
Re-hearing
On the hearing of an appeal from the Magistrates Court, this Court has a number of discretionary powers available, namely:
(a)it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b)it may remit the case for hearing or further hearing before the Magistrates Court;
(c)it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.[20]
[20] Magistrates Court Act 1991 (SA) s 42(5).
At the hearing of the appeal, both parties agreed that, if the matter is to be remitted to the Magistrates Court, a different magistrate should hear it. However, the appellant argues that the matter should not be remitted to the Magistrates Court for a new trial because:
·the charges could not be proved beyond a reasonable doubt, upon assessment of the correct definitions of a “road” and “driving”;
·the prosecution would gain a forensic advantage; and/or
·of the cost to the appellant of having to defend himself twice.
He argues that the convictions should be quashed but no re-trial ordered.
In exercising my discretion, I must weigh up the competing interests of the appellant and the public interest in the proper administration of justice. I have taken into account the fact that the appellant will have the expense of a second trial and that the prosecution may present additional evidence. However, these are not issues unique to this case. I am satisfied that the magistrate was correct in finding that the appellant “drove” the motor vehicle. I have had regard to the statutory definitions of “road”, relevant to Counts 2 and 3, and to the evidence presented at trial as to the location of the alleged offences. I am of the view that the question whether the offending occurred on a “road”, using the correct definition, is a matter which should be remitted to the Magistrates Court.
Conclusion
The appeal against the verdict of guilty on Count 1 is dismissed.
I allow the appeal with respect to Counts 2 and 3, on the basis that the magistrate erred in considering the wrong definition of a “road”. The verdicts are set aside and the matter is to be remitted to another magistrate for a re-trial of those two charges.