HARVEY v Police - [2009] SASC 302

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HARVEY v POLICE
[2009] SASC 302
Judgment of The Honourable Justice White
25 September 2009
TRAFFIC LAW - DEFINITIONS
Appellant seated with seat belt fastened in the passenger seat of a manual motor vehicle standing stationary at a petrol station - driver left keys in ignition - appellant reached across and attempted to turn keys to "accessories" position in order to operate the radio - appellant accidentally turned key to "ignition" position, activating starter motor - engine cranked over but did not start - car lurched forward, as it was in gear, and rolled towards the service station building - appellant charged with several offences, each offence having as an element the driving of a motor vehicle - Magistrate found that appellant had driven the motor vehicle and found appellant guilty of all offences charged - appeal against findings of guilt.
Held: authorites which give the word "drive" an expansive definition in order to facilitate recovery by a person injured by the acts of a person who is more like a passenger from the compulsory third party insurance fund should now be considered in the light of the subsequent extension of compulsory third party insurance to cover injuries caused by a vehicle's passengers - intention of putative driver relevant in determining whether conduct of the putative driver amounted to a "driving" of the motor vehicle - appellant was in the passenger's seat of the vehicle with seat belt fastened - vehicle moved a very short distance only - appellant did not intend to cause the vehicle to move - appellant moved the steering wheel only to take evasive action - appellant did not "drive" the motor vehicle for the purposes of the offences charged - appeal allowed and verdicts of acquittal entered on all counts.
Motor Vehicles Act 1959 (SA) s 9, s 91, s 99(3), s 102, s 104(1), s 116(2), s 116(3), Sch 4; Road Traffic Act 1961 (SA) s 5(1), s 47, s 47B(1), s 74, s 119; Statutes Amendment (Motor Vehicles and Wrongs) Act 1993 (SA) s 6, s 17, referred to.
Bassell v McGuiness (1981) 29 SASR 508; Williams v Urie (1984) 36 SASR 173, applied.
State Government Insurance Commission v Sweeny (1989) 52 SASR 139, distinguished.
Insurance Commissioner of the State Motor Car Insurance Office v Pullin (1971) 45 ALJR 176; Freeman v Police (2008) 180 A Crim R 524; Mercorella v Page (1975) 12 SASR 431; Police v Thomson (2006) 45 MVR 37; W P Smith Pty Ltd v State Government Insurance Commission (1983) 33 SASR 20; Allan v Quinlan; ex parte Allan [1987] 1 Qd R 213; Franz v Allum (1996) 24 MVR 492; Shortland County Council v Government Insurance Office of New South Wales [1973] 2 NSWLR 257; R v Murray (1986) 4 MVR 331; R v Clayton [1973] 2 NZLR 211; R v MacDonagh [1974] 1 QB 448; Saycell v Bool [1948] 2 All ER 83; Tyler v Whatmore [1976] RTR 83, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"drive"

HARVEY v POLICE
[2009] SASC 302
Magistrates Appeal

WHITE J: On 5 May 2008, the appellant was a front-seat passenger in a manually geared Ford Fiesta being driven by a friend. The friend drove the car into the Mobil Service Station on Main South Road at Morphett Vale in order to refuel. After he had used the petrol pump, the friend went inside to the console operator to make payment. While he was inside, the events giving rise to this appeal occurred.
The appellant noticed that the friend had left the driver’s door open. He was concerned that it may be struck by other motor vehicles. Without unbuckling his seat belt, he reached over the driver’s seat and closed the door. While leaning over, he also turned the key which the friend had left in the ignition. His intention was to activate the car radio by turning the key to the accessories position. However, he turned the key one notch too far, activating the starter motor with the effect that he cranked over the Fiesta’s engine. Although the engine did not start, the car, which was in gear, lurched forward. It then kept moving very slowly towards the console operator’s position in the service station shop, just over five metres away. From his position in the front passenger seat, and using his right hand on the steering wheel, the appellant endeavoured to steer the car away from the building. He was unsuccessful and the Fiesta struck the metal frame at the console operator’s window.
On these facts, which were not really in contention at the trial, a magistrate found that the appellant had driven the Fiesta so as to commit four offences. They were driving a vehicle while he had present in his blood the prescribed concentration of alcohol, contrary to s 47B of the Road Traffic Act 1961 (SA) (RTA); driving a vehicle while he was disqualified from holding a licence to do so, contrary to s 91 of the Motor Vehicles Act 1959 (SA) (MVA); driving an unregistered vehicle, contrary to s 9 of the MVA; and driving an uninsured vehicle, contrary to s 102 of the MVA. The PCA offence was committed because the appellant’s blood alcohol reading was 0.25 grams of alcohol in a hundred millilitres of blood.
The Magistrate referred to a number of authorities, to which reference will be made shortly, and then concluded:
I am satisfied beyond reasonable doubt that the defendant turned the steering wheel as he said he did, that his initial action in turning the ignition was voluntary, that the car did move forward, and then continued to slowly move forward, but the engine was not running. I am satisfied beyond reasonable doubt on the facts that I have heard that he was driving the vehicle in relation to each instance, in relation to each count. I bring a verdict of guilty in relation to each of those counts.
It can be seen that it was the appellant’s conduct in turning the ignition key and then attempting to steer the Fiesta which in combination the Magistrate regarded as amounting to the driving of the car.
The appellant appeals against his convictions. The sole question on the appeal is whether, in the circumstances described above, it was proved that the appellant was “driving” the Fiesta.
Both at first instance and on the appeal, the parties proceeded on the basis that, for the purposes of each of the offences with which the appellant was charged, the word “drive” had a common meaning. It was appropriate to do so. The RTA and MVA are concerned, in different ways, with the regulation of the use of motor vehicles and it is reasonable to suppose that the word “drive” and its cognates are used in each with the same meaning.[1] I will proceed on the same basis.
[1] Bassell v McGuiness (1981) 29 SASR 508 at 512 per King CJ; Williams v Urie (1984) 36 SASR 173 at 174 per King CJ.
However, in order to give a statutory context to these reasons I will refer to s 47B(1) of the RTA which provides (relevantly):
(1)     A person must not—
(a)     drive a motor vehicle; or
(b)     attempt to put a motor vehicle in motion,
while there is present in his or her blood the prescribed concentration of alcohol as defined in s 47A.
…
It can be seen that s 47B(1) distinguishes between the driving of a motor vehicle, on the one hand, and an attempt to put a motor vehicle in motion, on the other.
The word “drive” is defined in s 5(1) of the RTA as follows:
drive includes be in control of.
The question of whether a person has driven a vehicle has arisen in a variety of factual circumstances and often involves a finely balanced decision. Although the word “drive” and its cognates are commonly used, the courts have not been able to develop a single test with which to determine whether a person was driving a vehicle. Instead, courts have, depending upon the circumstances, had regard to a number of factors, including the extent of the control in fact exercised by the defendant over the movement of the vehicle; the extent of the defendant’s capacity to control the vehicle; the source of the vehicle’s propulsion; the position of the defendant in, or in relation to, the vehicle; the perceived legislative policy underlying the statutory provision in question, or a combination of some or all of those matters. The determination of the question can be, as Walters J noted in Mercorella v Page, a question of degree and circumstance.[2]
[2] (1975) 12 SASR 431 at 433.
In Mercorella v Page, the issue was whether the action of the defendant in pushing an unregistered motorcycle, and from time to time mounting it, in an attempt to jump-start it constituted the offence of driving an unregistered vehicle. Walters J held that it did, saying:
However, it is my opinion that for the purposes of s 102 of the [MVA], 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. This interpretation of the word seems to accord with a meaning given in the Shorter Oxford English Dictionary: “to cause to move along; to propel, to carry along”. It appears to me that if a person guides a machine, or regulates its course and pace, then he may be said to “drive” it. …To put such a meaning on the word “drive”, for the purpose of interpreting s 102(1) of the [MVA], gives effect, in my opinion, to the intention of the legislature, which I think is plain enough, namely, to guard against the risk of injury to people by a vehicle being driven on a public road, and to ensure “that everybody, who is injured by the use of the vehicle shall receive the fruits of any judgment that he obtains” …[3] [Citations omitted].
It can be seen that in this passage, Walters J had regard to the source of the motorcycle’s propulsion, the control exercised over it by the defendant and to the policy evident in s 102 that those injured by the driving of a motor vehicle should be able to enforce any judgment which they obtain against the compulsory third party insurance fund.
[3] Ibid at 433.
In Bassell v McGuiness,[4] the question was whether a person in the driver’s seat of a towed vehicle who was controlling its movements while being towed was driving the vehicle for the purposes of ss 47B and 119 of the RTA. It was held that he was. King CJ, with whom Mohr J agreed, said:
The defendant could operate the brakes, indicators, warning device, steering and lights. In my opinion he also had “something to do with the movement and propulsion” …in that he was managing a vehicle which, with his consent, was receiving its motion from the towing vehicle. I think that the defendant was driving in the ordinary sense of the word. …The defendant had a considerable measure of control over the vehicle and careless or unskilful exercise of that control could constitute a danger to other road users. It seems likely to me that the legislature intended that a person in that position should be required to avoid infringement of the statutory rules of the road so far as it is in his power to do so, and in particular should be sober, give appropriate signals and ensure that the vehicle was properly lighted …[5] [Citations omitted]
Matheson J took a similar view.
[4] (1981) 29 SASR 508.
[5] Ibid at 512.
In Bassell v McGuiness the defendant was, in effect, performing all the functions of a driver other than controlling the means of propulsion of the vehicle.
In Police v Thomson,[6] the defendant was undoubtedly driving his car, but was doing so on private land. Unexpectedly, the accelerator stuck in the depressed position with the effect that the car reversed rapidly out of a driveway and across a road where it collided with a tree stump. Vanstone J held that the defendant had been driving the vehicle for the purposes of s 47B of the RTA. While accepting that the defendant’s control over the propulsion of the vehicle was not a decisive factor, her Honour noted that the defendant had the ability to operate all of the functions of the vehicle including the brakes, steering and transmission. Vanstone J held that the defendant was “sufficiently in control of the operation of the vehicle” to indicate that he was driving it.[7]
[6] [2006] SASC 20; (2006) 45 MVR 37.
[7] Ibid at [16]; 40.
The circumstances considered by David J in Freeman v Police[8] are a little closer to the present. The defendant entered a security guard’s car, sat in the driver’s seat, and turned over the ignition. The effect was to cause the vehicle to “bunny hop” over a distance of about one and a half metres. David J upheld a Magistrate’s decision that the appellant had driven the vehicle for the purposes of s 47 of the RTA and s 74 of the MVA. His Honour relied upon the fact that it was the physical act of the defendant which had caused the car to be put into motion.[9]
[8] [2008] SASC 24; (2008) 180 A Crim R 524.
[9] Ibid at [11]-[12]; 526-7.
The exercise of control by the defendant over the movement of the vehicle has been treated as important in other cases. In Saycell v Bool,[10] it was the defendant’s exercise of control in deliberately releasing the handbrake on a truck which he owned and then steering it down a slope without starting the motor which was held to constitute the driving of the truck. Similarly, in Allan v Quinlan; ex parte Allan,[11] a person sitting in a side-saddle position on a motorcycle, guiding its movement as it coasted down a hill without the engine running, was held to be driving the motorcycle. In the New Zealand decision of R v Clayton[12] the defendant, who was sitting beside his wife who was in the driver’s seat, but with one or both of his hands on the steering wheel and in a position in which he could reach the clutch and the brake, was held to be sufficiently in control of the vehicle so as to have been properly convicted of a driving offence. The Court in Tyler v Whatmore[13] reached the same decision on a similar set of facts.
[10] [1948] 2 All ER 83.
[11] [1987] 1 Qd R 213.
[12] [1973] 2 NZLR 211.
[13] [1976] RTR 83.
The actual exercise of control may be sufficient even though the defendant is not, in any other material respect, in the position of a driver. Thus, in State Government Insurance Commission v Sweeny,[14] a passenger who grabbed and turned the steering wheel causing it to run off the road was held to have been sufficiently in control of the vehicle so as to be a driver for the purposes of the compulsory third party bodily injury insurance scheme. That much may depend upon the extent of the control exercised by the passenger, and its duration, can be seen in the decisions involving somewhat similar facts to those of SGIC v Sweeny in Franz v Allum[15] and R v Murray.[16] In each of those cases, a passenger who turned the steering wheel while the car was in motion was held not to be the driver.
[14] (1989) 52 SASR 139.
[15] (1996) 24 MVR 492.
[16] (1986) 4 MVR 331.
In R v MacDonagh[17] a person who was simultaneously pushing and steering a car from a position with both legs on the ground outside the vehicle was held not to be driving it. Lord Widgery CJ said:
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 licence and third-party insurance in circumstances which cannot have been contemplated by Parliament.[18]
[17] [1974] 1 QB 448.
[18] Ibid at 451.
In each of the cases referred to above, the movement of the vehicle by the defendant was intentional. But there are cases suggesting that when a defendant performs an act which has the unintended effect that the vehicle moves, he or she may be regarded as driving it. In Insurance Commissioner of the State Motor Car Insurance Office v Pullin,[19] the High Court upheld a finding that a youth who, while sitting in the driver’s seat of a car which was stationary but with the engine running while receiving mechanical attention, had driven the car when he put the car into gear and released the clutch with the effect that the car moved forward a few metres. McTiernan J, with whom the other members of Court agreed, said:
A contention was put forward that Baldwin did not intend to drive the motor car. It was not shown that the manipulation of the gear stick by which the motor car could be changed from neutral to a forward gear, and the operation of the clutch were not voluntary acts on the part of Baldwin. The conclusion that he was driving the motor car when it caused the injury to Pullin was amply justified by the evidence. Even though Baldwin may not have intended to put the motor car in motion, in fact, he did so. …Whether Baldwin set the motor car in motion intentionally or not he, as the driver of the motor car, incurred liability in respect of the injury caused to Pullin, and Baldwin as driver was insured by the contract of insurance against that liability.[20]
[19] (1971) 45 ALJR 176.
[20] Ibid at 177.
In Shortland County Council v Government Insurance Office of New South Wales[21] an employee of the defendant wished to see whether the battery of a car had been fully recharged and was operable. From his position outside the car, he put his hand through the driver’s side window and turned the ignition key. Unknown to him, the car was in gear and the effect was to cause it to lurch forward injuring a fellow employee. It was held that the employee was the driver of the car for the purposes of the NSW CTP legislation. Jacobs P, with whose judgment the other members of the Court agreed, said:
I feel no doubt that [the defendant] was the driver of the motor vehicle. He was the man whose action drove the motor vehicle forward. He was not in the driver’s seat, but that cannot be the test. He did not have the intention of driving the vehicle, but again that cannot be a conclusive test of whether in fact he was the driver or not. He had control of the means of propulsion forward of that vehicle. In the same way as if he had intentionally driven it forward, so, with that means of propulsion of the motor vehicle under his control, he inadvertently drove the motor vehicle forward. He did not steer it but that again is merely incidental. …[22]
Jacobs P went on to say that the existence of an intention to drive was not the material test of whether the defendant had been driving the car.[23]
[21] [1973] 2 NSWLR 257.
[22] Ibid at 260.
[23] Ibid.
The circumstances in W P Smith Pty Ltd v State Government Insurance Commission[24] were similar to those considered in Shortland v GIO. A woman whose car had been giving electrical trouble drove the car to the premises of a firm of automotive electricians and left the car in the street outside those premises. An employee of the firm came out to examine the car, put his hand through the driver’s side window, and turned on the ignition. The car, which had been left in gear, immediately lurched forward and injured the woman. Millhouse J followed the decisions in Pullin and in Shortland v GIO and held that the employee was, for the purposes of the CTP policy, the driver of the vehicle.
[24] (1983) 33 SASR 20.
Although the High Court in Pullin indicated that a person may be regarded as the driver of a vehicle even when setting the vehicle in motion unintentionally, I do not understand it to have held that the intentions of the putative driver are wholly immaterial to a consideration of whether the conduct in question amounted to a driving of the vehicle. The intentions of the defendant often go unremarked, because it is obvious from the conduct of the defendant that the defendant intended to drive the vehicle. Under s 47B, assuming that the relevant conduct of the putative driver was conscious and voluntary, the question of whether he or she was driving the vehicle is to be assessed objectively. However, in making that objective assessment, I see no reason why an absence of intention by the defendant may not be a relevant factor.

In the present circumstances, the appellant was exercising some control. It was his action in turning the ignition key one notch further than he intended which caused the Fiesta to move. Once it started moving, he attempted to control the direction of its travel by his movement of the steering wheel. In addition, if the appellant had wished to do so, he could have applied the handbrake. He said that he did not do so because of panic. In some of the cases reviewed above, even less control than that exercised by, or open to, the appellant in this case has been sufficient to amount to the driving of a vehicle.
On the other hand, the appellant remained seat-belted in the passenger seat at all times. He could not operate the clutch, footbrake or accelerator and could not have changed gear. In addition, it would have been difficult for him to operate the other controls available to a driver of the Fiesta such as the indicator, lights or warning device. The engine of the car had not started and it moved only some five metres. In these circumstances it does not seem apt, using the ordinary meaning of the word “drive”, to describe the appellant as the driver of the Fiesta. It would be more natural to regard him as having interfered with the driving of the vehicle during the friend’s temporary absence from the vehicle. Reference to the appellant’s subjective intentions confirms that conclusion.
A number of authorities have been influenced by the desirability of construing the word “drive” and its cognates in a way which would permit an injured person to have recourse to the compulsory third party bodily injury insurance scheme. It is, accordingly, appropriate to consider what the position would have been in the present case if someone had been injured.
As the Fiesta was unregistered and uninsured, an injured person could have brought an action for the recovery of damages in respect of the injuries against the Nominal Defendant (s 116(2) of the MVA). The amount recoverable in such an action would have been the same amount which could have been recovered if the Fiesta had been an insured vehicle at the relevant time (s 116(3)).
If the Fiesta had been insured, an injured person could have sought to recover damages from the appellant, and, on my understanding of the MVA, the appellant would have been entitled to indemnity from the Compulsory Third Party Bodily Injury Fund. That is because the compulsory policy under the MVA must insure “the owner of the motor vehicle to which the policy relates, and any other person who at any time drives or is a passenger in or on the vehicle”[25] in respect of all liability which may be incurred by the owner or other person in respect of death or bodily injury to a third party.[26]
[25] Emphasis added.
[26] See s 104(1) of the MVA and the terms of the compulsory policy contained in the Fourth Schedule to the MVA.
Recourse could be had to the Compulsory Third Party Bodily Injury Policy only if the injury could be regarded as a consequence (relevantly) of the driving of the vehicle or the vehicle running out of control (s 99(3) of the MVA). In circumstances of the present kind, a conclusion that the vehicle was not being driven would preclude an injured person satisfying the first limb. However, it does seem that if a third party had suffered injury in the circumstances occurring on 5 May 2008 it could be said that the injury was a consequence of the vehicle “running out of control” (s 99(3)(b)).
I note that both s 104 of the MVA and the Fourth Schedule (containing the statutory policy of insurance) were amended in 1993 so as to extend the insurance coverage to “a passenger in or on a vehicle”.[27] This means that it is no longer as necessary as it was in the past to give an extended meaning to the word “drive” and its cognates in order that persons injured as a result of the actions of someone who is in the position of a passenger may have recourse to the Compulsory Third Party Bodily Injury Insurance Fund. It also means that care must be taken in applying to the present legislation authorities decided before 1993, such as State Government Insurance Commission v Sweeny.[28]
[27] Section 6 and 17 of the Statutes Amendment (Motor Vehicles and Wrongs) Act 1993 (SA).
[28] (1989) 52 SASR 139.
In my opinion, some features of the present case are particularly important.
The putting of the Fiesta into motion was quite short. The appellant remained at all times seat-belted in the front passenger seat. He took hold of the steering wheel only as a reaction to the movement of the car which he had precipitated. He did so only in an endeavour to take evasive action. It would be a curious consequence if a person in his position was to be dissuaded from taking such evasive action by the appreciation that he or she would commit an offence in consequence of being unlicensed, or because he or she exceeded the prescribed concentration of alcohol or because the vehicle was unregistered and uninsured. It is not necessary to give an extended meaning to the word “drive” in the present circumstances in order to ensure the availability of recourse by injured persons to the CTP scheme.
When one has regard to all those circumstances, I do not consider that it can be concluded, beyond all reasonable doubt, that the appellant was a driver of the Fiesta. In my respectful opinion, the decision of the Magistrate was wrong.
Accordingly, I will allow the appeal and set aside the convictions entered on 22 June 2009 and sentences imposed by the Magistrate on 24 June 2009.
I direct verdicts of acquittal on each of the charges against the appellant.