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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] SASC 302
Decision Date: 25 September 2009

CaseChat Overview and Summary

In the case of Harvey v Police, the appellant was seated in the passenger seat of a stationary manual motor vehicle at a petrol station, with the keys in the ignition and the seat belt fastened. The appellant reached across to turn the keys to the "accessories" position to operate the radio but accidentally turned the key to the "ignition" position, activating the starter motor. The engine cranked over but did not start. However, because the car was in gear, it lurched forward and rolled towards the service station building. The appellant was subsequently charged with several offences, each requiring an element of driving a motor vehicle. The Magistrate found the appellant guilty of all charges, leading to an appeal against the findings of guilt.

The central legal issue was whether the appellant's actions constituted "driving" the motor vehicle, given the statutory definitions and the specific circumstances of the incident. The appeal hinged on the interpretation of the word "drive" and whether the appellant's actions, which involved moving the vehicle only a short distance and solely for the purpose of taking evasive action, could be considered as driving for the purposes of the offences charged. The court had to consider the broader legislative intent behind the compulsory third party insurance scheme and how it applied to the appellant's situation.

The court concluded that the expansive definitions of "drive" found in previous authorities, which were intended to cover passengers under the compulsory third party insurance scheme, should be reconsidered in light of the scheme's expansion to include passengers. The intention of the putative driver was a key factor in determining whether the conduct amounted to driving. The appellant was in the passenger seat, had not intended to cause the vehicle to move, and only moved the steering wheel to take evasive action. Therefore, the appellant did not "drive" the motor vehicle for the purposes of the offences charged. The appeal was allowed, and the verdicts of acquittal were entered on all counts.

As a result of the appeal, the appellant was acquitted of all charges, and the court's decision underscored the importance of considering the legislative intent and the specific circumstances of the case when interpreting the term "drive" in traffic law.

Orders