Jurd v Howe - [2011] WASC 30

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: JURD -v- HOWE [2011] WASC 30

CORAM: MURRAY J

HEARD: 2 FEBRUARY 2010

DELIVERED : 2 FEBRUARY 2011

PUBLISHED : 8 FEBRUARY 2011

FILE NO/S: SJA 1103 of 2010

BETWEEN: NICHOLAS PAUL JURD
Appellant
AND
DANIEL ROSS HOWE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E F SHARRATT
Citation  :POLICE -v- JURD
File No  :JO 4319 of 2010

Catchwords:

Criminal law and procedure - Road traffic - Driving without seatbelt - Defence that vehicle driven at low speed, stopping at 'frequent intervals' - Otherwise turns on own facts

Legislation:

Road Traffic Code 2000 (WA), reg 232

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms K L Pope

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

MURRAY J:

The proceedings so far

A prosecution notice, issued out of the Joondalup registry of the Magistrates Court, charged the appellant that on 10 November 2009, at Wangara, he drove a motor vehicle on Dellamarta Road, whilst occupying a seat position with a seatbelt fitted, whilst that seatbelt was not properly adjusted and securely fastened, contrary to reg 232(1) of the Road Traffic Code 2000 (WA).
The appellant pleaded not guilty and the charge ultimately came on to be tried in the Joondalup Magistrates Court before Magistrate Sharratt on 2 September 2010, nearly a year after the alleged date of the offence.
After trial, the appellant was convicted. The magistrate gave his reasons for that decision ex tempore, and he proceeded to penalty, imposing a fine of $500, awarding costs of $119.20, and noting that, upon conviction, four demerit points would apply to the appellant, who was a first offender, having only previously incurred a number of demerit points.
The fine of $500 was in fact the statutory minimum penalty. Regulation 235A(1) prescribes the applicable modified penalty payable on the issue of an infringement notice. It is 10 penalty units (PU). The value of a PU is $50: Road Traffic Act 1974 (WA), s 5(1a)(b). By reg 9(1)(a), for a first offender, the minimum penalty was the number of penalty units imposed as a modified penalty for the offence, and the maximum penalty was 24 penalty units (24 PU). The failure to wear a seatbelt is by no means a trivial offence.
The appellant appealed to this court against his conviction. Jenkins J granted him leave to appeal, on the ground specified in the appeal notice. Mr Jurd has been unrepresented throughout, and his ground is expressed in general terms, foreshadowing his argument on the appeal:
I believe the magistrate erred, as, according to Road Traffic Code 2000, s 232(2)(c), it was not in dispute that I was frequently stopping for work and travelling under 25 kph. A policeman (unidentified) stepped forward and told the magistrate this defence was 'designed for delivery drivers' which influenced the magistrate in my opinion.

The issues in the appeal

I may deal immediately with the contention that an unidentified policeman in some way improperly intervened in the proceedings at trial. The evidence for the prosecution, presented by a police prosecutor, was given by two police officers who had been on patrol in the Wangara area. The first officer called was the respondent, who issued the prosecution notice. He was the driver of the marked police car. Evidence was also given by his partner, PC Ward, who was a passenger in the police car. To the extent that they gave evidence about common matters, they corroborated each other. The appellant gave evidence for the defence.
At the conclusion of the evidence, the magistrate invited final addresses, and brief statements were made by both the prosecuting officer and the appellant. During the course of the prosecuting officer's address, the magistrate raised the question of the availability of a statutory defence. It is clear that the appellant was ignorant that there was such a defence, although the factual issues raised during the trial fell squarely within the four corners of that defence.
The defence arose under reg 232(2), as follows:
2.It is a defence in proceedings for an offence against subregulation (1) for the person charged to prove that -
(a)the motor vehicle was travelling backwards at the relevant time;
(b)the person had a medical certificate at the relevant time and, if required to do so, the person produced the medical certificate;
(c)at the relevant time, the person -
(i)was engaged in work that required the person to alight from and re‑enter the motor vehicle at frequent intervals; and
(ii)was not driving the motor vehicle at a speed exceeding 25 km/h;
or
(d)the alleged offence took place during the hours of darkness and, at the relevant time, the person was driving a taxi that was carrying one or more passengers for reward.
The part of reg 232(2) which was discussed at the trial and considered by the magistrate was reg 232(c). The decision of this appeal requires my interpretation of that provision, and the proper meaning and ambit of the defence was discussed by the magistrate with the prosecutor. During that discussion, it seems that another police officer, apparently a member of the Joondalup police prosecuting branch, made a contribution to the debate.
The magistrate had asked if anybody had a Road Traffic Code which they could give to the prosecuting officer. The unidentified policeman volunteered that he did not have a copy of the Code, but was familiar with the relevant defence section, which he understood to be specifically designed for people employed as milk deliverers, produce deliverers, door to door salespeople and postal delivery workers who had to get in and out of their vehicles frequently as a requirement of their work.
The process was rather informal and somewhat unusual, but there is no indication that the magistrate was in any way misled as to the terms of the relevant subregulation or as to its proper interpretation. There is no merit in this aspect of the ground.
There are no published decisions which give guidance as to what reg 232(2)(c)(i) means when it refers to engagement in work that requires the person to 'alight from and re‑enter the motor vehicle at frequent intervals'. His Honour the magistrate used a dictionary definition of the word 'frequent' as meaning 'happening at short intervals, often recurring, faster than normal; the fact of occurring often or being repeated at short intervals'. I would have no quarrel with the proposition that the word 'frequent' in the subregulation must bear its ordinary natural meaning.
In essence, the magistrate's reasons for his decision were as follows. He found established beyond reasonable doubt that the appellant drove the vehicle on a road without wearing a properly adjusted and securely fastened seatbelt, when such a belt was fitted in the car. There was a dispute about the road where the incident occurred. As has been seen, the prosecution notice alleged that it occurred in Dellamarta Road, Wangara. That was the evidence of the police officers. The appellant's evidence, however, was that it occurred in a parallel road a block away from Dellamarta Road, which was called Buckingham Drive.
The magistrate preferred the evidence of the appellant, and found that Buckingham Drive was indeed where the incident occurred. However, nothing turned on it for the proof of the offence, although it was important for the appellant's proof of his defence.
The appellant's evidence was that he thought he had been wearing a seatbelt because he was employed as a salesperson for a security company, and he was often on the road and habitually used a properly fastened seatbelt. But he conceded that he had no recollection as to whether that was the case at the time in question, and the magistrate accepted the clear evidence of the police officers, that as they passed the appellant's vehicle, travelling in the opposite direction, they could see that the belt in the driver's position of the appellant's vehicle was hanging loose and was unfastened.
As to the defence, the magistrate approached the matter as required by reg 232(2) on the basis that it was for the appellant to prove the facts which would make out the defence, and to do so to the civil standard, on the balance of probabilities. That was undoubtedly correct. His Honour expressed his final conclusion as follows:
My view is that the frequency of his stopping and starting would have to be much greater than once every quarter of an hour to engage the section because of the dictionary definition of the word 'frequent'.
Also, I am not satisfied, even on the balance of probabilities, that the applicant has been able to prove that he was not driving the motor vehicle at a speed exceeding 25K.
Now, the use of the negative by the defence section means that there is a positive duty on the applicant to disprove that he was driving under 25K. I cannot draw an inference to that standard that when he was crossing the road, it must have been that he was travelling under 25K. There is simply not enough evidence before the court to allow me to draw that inference from proven facts, so in all the circumstances, I find the prosecution have proved the case (ts 28 ‑ 29).

The interpretation of the regulation

There is indeed no published decision guiding the court upon the ambit of the defence provided in reg 232(2)(c). In the same terms, the same defence is available in respect of the offence defined in reg 236(1), imposing an obligation upon a passenger in a motor vehicle to wear a properly adjusted and securely fastened seatbelt where such a belt is fitted and available. Again, the same defence is available in respect of the offence defined in reg 237, which imposes an obligation on a passenger to occupy a seating position fitted with an operative seatbelt, where such a position is available and not already occupied.
In other Australian jurisdictions, the legislature has taken up the opportunity to enact, by regulation, the provisions, modified in some cases, of what are described as the 'Australian Road Rules' approved by the Australian Transport Council, which contain a provision designed to provide the same defence, although in different terms to those employed in reg 232(2)(c) of the Road Traffic Code.
A good example is provided in South Australia, where the Road Traffic Act 1961 (SA), s 80, provides for the making of rules in terms of the Australian Road Rules, 'to regulate traffic movement, flows and conditions, vehicle parking, the use of roads, and any aspect of driver, passenger or pedestrian conduct'.
The relevant Australian Road Rule as enacted in SA is r 267(2), which is in the following terms:
A person in or on a motor vehicle is exempt from wearing a seatbelt if:
(a)the person is engaged in the door‑to‑door delivery or collection of goods, or in the collection of waste or garbage, and is required to get in or out of the vehicle, or on or off the vehicle, at frequent intervals; and
(b)the vehicle is not travelling over 25 kilometres per hour.
The rule is more confined than reg 232(2)(c) because it describes the activity in which the person seeking to take advantage of the exemption must be engaged, and that gives some guidance as to what may be meant by 'frequent intervals'.
In my view, the proper interpretation of the defence provided in reg 232(2)(c) in the context of the regulations is as follows:
1.The defence must be established 'at the relevant time'. That must be the time at which the driver failed to wear the seatbelt as alleged in the prosecution notice.
2.Any work activity will do. The defence is not confined to particular types of work activity in the way described in the Australian Road Rules and as was supposed applied when the submission was made by the intervening, unidentified police prosecutor.
3.The requirement to alight from and re‑enter the motor vehicle is not necessarily a requirement imposed by a person who directed that the work be done, but may be a requirement of the manner in which the defendant chose to perform the work, even though it could have been performed in a way which did not require the person to alight from and re‑enter the motor vehicle at frequent intervals.
4.The reference to frequent intervals is a reference to a repetitive requirement to alight from and re‑enter the motor vehicle in the performance of the work. The failure to wear the seatbelt at the relevant time must exemplify that repetitive process of alighting from and re‑entering the vehicle.
5.The frequency of alighting from and re‑entering the vehicle is to be judged by reference to the performance of the work undertaken, but frequency refers to repetition of the need to alight from and re‑enter the vehicle. It does not refer to how quickly those activities must be repeated in the performance of the work.

The magistrate erred in his consideration of the defence

In the light of my interpretation of reg 232(2)(c), in my opinion the magistrate erred in his interpretation of the subregulation because he considered that the frequency of alighting from and re‑entering the vehicle was to be measured by having regard to the lapse of time between each such occasion.
Further, as a matter of fact, in my respectful opinion, his Honour erred in his failure to conclude that at the relevant time, the time at which it was established that the appellant had driven the vehicle without wearing the seatbelt, the vehicle was probably travelling at a speed of 25 kph, or more slowly.
I did not permit the appellant to add to the evidence at trial by any further affidavit evidence, and so the conclusion to which I have come is based upon the evidence of the primary facts accepted by the magistrate, as given by the police officers and the appellant.
In relation to the question of the probable speed at which the vehicle was being driven at the relevant time, I have approached the matter by making a careful review of the evidence given below and by considering whether, despite the advantage of the magistrate as the trial judge, having seen and heard the witnesses, I am compelled to conclude that his Honour erred by his failure to draw the conclusion about speed, having regard to the uncontested evidence bearing upon that question: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 127 ‑ 129 [27] ‑ [31] (Gleeson CJ, Gummow and Kirby JJ).
As I have already observed, to the extent that this case turned upon questions of credibility, where there was a conflict between the evidence of the appellant and the evidence of the two police officers in relation to the name of the street where the incident occurred, the appellant's evidence was accepted in preference to that given by the respondent and the other police witness. As to the matters of fact upon which the availability of the defence depended, they did not depend upon questions of credibility, but upon the conclusions to be arrived at having regard to the evidence given.
In particular, as to the question of the speed of the vehicle, I have approached the matter upon the basis that I should not draw the inference as to speed upon which the availability of the defence depends, unless, having reviewed the whole of the evidence, I should conclude that the inference which his Honour the magistrate declined to draw was, in truth, compelling.

The evidence reviewed

As I have said, the police witnesses, generally speaking, corroborated each other in relation to the incident which led to the charge which was laid in the prosecution notice. The officers were in a marked police vehicle patrolling the area. They were travelling in an easterly direction at a slow speed, about 40 kph, when they passed the appellant's vehicle travelling in the opposite direction. Both of them observed that the seatbelt was not fastened. The respondent, who was driving the vehicle, did a U‑turn and drew up alongside the appellant's vehicle which had just parked in a parking area of commercial premises on the north‑west corner of Buckingham Drive and O'Connor Way, where, as the appellant alighted from his car, the officers spoke to him and told him that he had been observed not wearing a seatbelt. They said that he replied:
I know. I just pulled out from premises up the road and I was just going into these premises to quote security. It was just a short distance (ts 4).
The infringement notice applicable to the offence charged was issued.
PC Howe was not asked any questions about the speed at which the appellant's vehicle was travelling when it was passed by the police vehicle at the time when the officers observed that the appellant was not wearing his seatbelt. It will be recalled that PC Ward was the passenger in the police vehicle. When he gave evidence, the magistrate asked him if he knew how fast his vehicle was travelling. He answered:
About 40 k's. We were both travelling under the speed limit. His vehicle wasn't travelling very fast (ts 9).
When the appellant gave evidence he was assisted, quite properly, by questions asked by the magistrate, and he was cross‑examined, but not about the speed of his vehicle, or indeed about anything upon which the availability of the defence particularly turned. His evidence‑in‑chief was given at ts 11 ‑ 16 with the assistance of a Google map of the area upon which the appellant had made annotations identifying the places where he stopped and the times at which he did so. This document was received into evidence as exhibit A.
The appellant explained that he was employed by a security firm as a sales representative. He spent a lot of time travelling in his car and, although he habitually wore a seatbelt, as I have said, he could not, at trial, remember whether or not he was doing so at the time when he was observed by the police officers.
He was in the Wangara area because he had an appointment with a company which operated a car sales yard, to speak to them about installing closed‑circuit television, after they had suffered an arson attack upon a vehicle in their yard. The premises were in O'Connor Way and the appointment was for 9.30 am.
The appellant decided that he would do some 'cold calling' on his way to the appointment. By this he meant calling upon similar commercial premises without an appointment. He had prepared a brochure which he could leave with the car yards upon which he called in this way. He said he would explain who he was, what had happened to his client in the area, and invite the car yards upon which he called to consider whether they would like to improve their security arrangements by installing CCTV at their premises.
The appellant said that he commenced this process at about 8.45 am, when he made his first call at premises at the eastern end of Buckingham Drive, about a kilometre, according to the Google map, from the place where he was apprehended by the police. Between those two points he made about five cold calls, and he was about to make a sixth when he was apprehended at about 9.15 am, about half an hour after he commence the process.
His procedure was to drive his vehicle into the yard, make contact with someone in management there, explain why he had called, leave his brochure and card, and invite them to call him if they were interested in upgrading their security. He did not say how long this would take in each case before he would return to his car, get in and drive to the place where he chose to make his next call. Nor did he say in evidence that there was a common, measurable interval between each call. He had made five calls in just under half an hour, but the premises he went to were in some cases close together, and in others further apart.

Immediately before he was apprehended, the appellant had made a call to premises on or very near the south‑east corner of the intersection of Buckingham Drive and O'Connor Way. To travel from there to where his appointment was located, he would have to go back onto Buckingham Drive and turn right into O'Connor Way. On the corner of the intersection diagonally opposite were premises of a car yard where he proposed to make his last cold call before attending his appointment. As I have mentioned, he drove into that yard and it was there that the policemen apprehended him.
The appellant got there, after making the cold call at the premises on the south‑east corner of the intersection, at about 9.10 am, by re‑entering his motor vehicle and driving out onto Buckingham Drive. His evidence was that he could not immediately turn right into O'Connor Way because another vehicle was stationary in Buckingham Drive and about to make the same manoeuvre. The appellant had to wait before the way was clear, and it was at this time that he saw the police car go past.
When the way was clear he drove into the car yard where he was apprehended. He had, in fact, made two calls just before crossing the road in that way. He said that the distance from the side of Buckingham Drive where he stopped, waiting for the other car to clear the intersection, to the opposite side of the road was about 10 yards. He said, 'I didn't need to travel down the road. I needed to cut across the road to get into O'Connor Drive' (ts 13).
As I have said, there was no conflict in the evidence about matters material to the establishment of the defence, and the appellant's account appears clearly to have been accepted.

Conclusion

In my view, it is evident that, within the proper interpretation of reg 232(2)(c)(i), the appellant was engaged in work that required him to alight from and re‑enter his car at frequent intervals. In the space of the period between the first call at 8.45 am and his apprehension at 9.15 am, he made five or six cold calls, adopting the procedure described.
But the frequency of the process of alighting from and re‑entering the motor vehicle was not to be measured, as the magistrate appears to have done, by simply considering how often it occurred within a particular period of time, but by having regard to the periods between when the appellant re‑entered the vehicle and drove to the next stop before again alighting from it, the period during which the driver would otherwise have to fasten and then unfasten the seatbelt. It was not correct to count the periods of time when the drive was away from the vehicle delivering goods or, as in this case, making a call.
In addition, in my view, the evidence of the appellant which was accepted by the magistrate as to what occurred in the way of driving the motor vehicle at the time when the appellant was observed not to be wearing the seatbelt was clear and uncontradicted by the evidence of the police officers.
That evidence, in my opinion, compelled the conclusion that probably, in the short distance involved, even if it was rather longer than 10 yards, the appellant probably did not drive his car at a speed which exceeded 25 kph. It was, in my respectful opinion, not open to the magistrate to decline to draw that inference.
It was, for those reasons, that at the conclusion of the hearing I allowed the appeal, quashed the conviction, set aside the fine and the order for the payment of costs, and noted that the demerit points should, of course, be expunged from the appellant's record.