Marriott, Lexley David v Brown, Graeme Maxwell

[1998] TASSC 99

99/1998

PARTIES:  MARRIOTT, Lexley David

v

BROWN, Graeme Maxwell

TITLE OF COURT:  SUPREME COURT OF TASMANIA

JURISDICTION:  APPELLATE

FILE NOS:  LCA 27/1998

DELIVERED:  13 August 1998

HEARING DATES:  13 August 1998

JUDGMENT OF:  Underwood J

CATCHWORDS:

[Edited edition of reasons for judgment given orally]

REPRESENTATION:

Counsel:

Appellant:  J F W Crotty

Respondent:  J N Perks

Solicitors:

Appellant:  James Crotty

Respondent:  Director of Public Prosecutions

Judgment category classification:

Court Computer Code:

Judgment ID Number:                  99/1998

Number of pages:  3

Serial No 99/1998

File No LCA 27/1998

LEXLEY DAVID MARRIOTT v GRAEME MAXWELL BROWN

REASONS FOR JUGMENT  UNDERWOOD J

(Delivered Orally)  13 August 1998

The applicant seeks a review of an order made in a court of petty sessions on 19 March 1998 finding the applicant guilty of one count of driving whilst disqualified, contrary to the Road Safety (Alcohol and Drugs) Act 1970, s19A(1), one count of driving an unregistered motor vehicle, contrary to the Traffic Act 1925, s14(1)(b) and one count of using a motor vehicle with no premium cover, contrary to the Motor Accidents (Liabilities & Compensation) Act 1973, s29(1).

The relevant facts, as given to the learned magistrate by the only witness for the prosecution, one Constable Watling, were that on morning of 26 August 1997, she was driving along Baskerville Road when she saw the applicant on a motorbike coasting down the road in the opposite direction and just about to turn into the entrance of the Baskerville race track. Constable Watling said that parked in the entrance to the race track was a vehicle with two persons in it. She said that she intercepted the motorbike, spoke to the applicant, and asked if he had a licence. He told her that he did not have one. She said that she then noticed that the motorcycle had no registration plates. She asked the applicant what sort of bike it was and he told her. She then asked the applicant why he was riding without a licence and he stated that he had only ridden from 34 Cowle Road, Bridgewater because he had made arrangements to ride the motorcycle in the paddock next to the Baskerville race track. Constable Watling also said that the applicant told her which roads he had travelled on from 34 Cowle Road to the Baskerville race track.

The account given by the applicant was quite different. He said that he took his motorcycle in the boot of a friend‘s car to the entrance of the Baskerville race track. He said that on arrival the cycle was unloaded from the boot and he jumped on the back of it and rolled it around to the gate beside the car, a distance of about four to five metres. He said it was at that stage that the police officer came along and spoke to him. He denied that he had coasted it down Baskerville Road to the entrance to the race track. So, there was a sharp, fundamental conflict of fact for the learned magistrate to resolve; whether the applicant coasted his bike down Baskerville Road, or whether it was taken from the boot of the stationary car parked at the entrance to the Baskerville race track and only moved a very short distance to the front of the car.

In cross-examination, the police officer explained to the learned magistrate that she first noticed the oncoming motorcycle as she rounded a bend and therefore her opportunity to see the applicant coasting it along the public street lasted only while it travelled for what she estimated to have been some fifteen to twenty metres. She also said to the learned magistrate during cross examination that the applicant had asked her how he was going to get the bike home and she suggested that he put it in the boot of the car. She said that there was then some discussion about whether it would fit or not. The applicant said that did not happen at all and there was no such discussion. He said that the cycle had travelled to the race track in the boot of the car and he knew all along it would go back again in exactly the same way. His witness, although confirming that the cycle travelled to Baskerville race track in the boot of the car, did say that the police officer told them to put the bike “back” in the car to take it home again.

With respect to the conflict of fact, the learned magistrate said that he disbelieved the defendant’s version of events. He said:

“Now I do that through watching him closely in the box and considering his demeanour and considering the manner by which he gave his evidence and also considering a couple of little things. He was very adamant that at all times this

motorcycle had come down in the boot of the car and was going back in the boot of the car and at no stage did the police officer have to indicate that the motorcycle should be put back in the boot of the car to be removed from Baskerville back to Bridgewater. It‘s interesting to note the witness he called who just said, ’the policewoman told us to put the bike back in the car and go‘. This was precisely what the policewoman had indicated in her evidence and I have just watched the last witness very carefully and I’m certainly of the opinion that having regard to his abilities he was telling the truth as he saw it.”

The learned magistrate then went on to make a reference to a relatively minor conflict between the evidence of the applicant‘s witness and the applicant and then said:

“I believe the situation here is as the police officer indicated. That she saw the vehicle coming down Baskerville Road with the defendant being the person on it. It may well have been coasting at the time and coasted into that driveway. The driveway of course is still part of the public street so far as the Traffic Act is concerned, it’s still a part of the street open to the public. It may well be then that he started the motor preparatory to going through the gate, but I am satisfied, in any event, that his control by way of steering and brakes coming down the incline into the driveway, was sufficient to amount to a driving at the time he had sufficient control of it, I find he was driving.”

There are two grounds to the motion to review. One is that error occurred in the finding of fact that the acts of the applicant in controlling the motorcycle were sufficient to amount to an act of driving. With respect to this ground, the police officer‘s evidence was that the applicant steered the bike as he coasted down the road and applied the brakes “a bit” turning into the Baskerville race track. With respect to the law as to what constitutes driving for the purpose of the offences charged, I turn, first of all to the Road Safety (Alcohol and Drugs) Act, s2(4) which defines driving a vehicle or motor vehicle as including a reference to:

“… having charge of that vehicle or motor vehicle, and a person may, having regard to the particular circumstances of the case, be regarded as driving a motor vehicle for the purposes of this Act notwithstanding that the motor vehicle is stationary or that he may have alighted from the vehicle.

As to what constitutes an act of driving I am, of course, bound by the decision of the Full Court in Coooley v Lowe [1984] Tas R 107, which is to the effect that driving means the use of driver’s controls in order to direct the movement of the vehicle however that movement is produced. In his judgment, Cox J (as he then was) cited with approval the following passage from Tink v Francis [1983] 2 VR 17 at 19 where Young CJ said:

”The ordinary meaning to be attached to the word ‘drives’ when applied to a motor car should, I think, embrace the notion of some control of the propulsive force which, if operating will cause the car to move. The propulsive force is not, however, to be confined to sources within the motor vehicle itself, but includes at least the force of gravity and, if momentum can with sufficient accuracy be described as a force, its momentum. I see no reason why it should not also include other forces externally applied.“

The other members of the Court expressed agreement with Cox J‘s reasons.

Mr Crotty, for the applicant, referred to a Queensland Full Court decision of Allan v Quinlan (1986) 3 MVR 343, but I don’t see anything in the judgment of Williams J, to which Mr Crotty referred, contrary to the views expressed by Cox J in Cooley v Lowe. In any event, as I say, I am bound by the law as determined in Cooley‘s case. Accordingly, there was no error of law as alleged by the motion to review in the learned magistrate’s finding that the applicant was driving at the relevant time. On the facts as found by the learned magistrate, not only was that conclusion

reasonably open, it was, in my view, the only one that could reasonably have been made in the circumstances.

The second ground of review is that the findings of guilt are unsafe or unsatisfactory. With respect to this ground, I direct myself in accordance with the law as expounded by the Full Court of this Court in Kelly v O‘Sullivan (1994) 4 Tas R 446. I cite the following passage at 4 of the reasons for judgment of Crawford J:

”It seems to me to follow irresistibly that if a finding of guilt by justices or a magistrate is unsafe or unsatisfactory in the sense that it is unreasonable or cannot be supported having regard to the evidence to the extent that, although there might have been evidence upon which the finding of guilt could have been based, it would be dangerous in all the circumstances to allow the finding to stand, then an error or mistake on the part of the justices or magistrate on a matter or question of fact has occurred. In my view therefore if a finding of guilt is unsafe or unsatisfactory in that sense then a ground of review alleging it is a valid ground and must succeed.“

In my view, these findings of guilt are quite clearly not unsafe or unsatisfactory. The observations that the learned magistrate made in his reasons for judgment were perfectly appropriate. In the particulars set out under this ground, the applicant complains that the learned magistrate erred in concluding that the witness was ”adamant“. Whether or not a witness is ”adamant“ depends on the perceptions of the person who sees him and hears him give evidence. Another particular alleges error in holding that the evidence of the applicant’s witness that the police officer told them to put the bike back in the car, was supportive of the evidence of the police officer. That evidence touched upon the real area of dispute, because the applicant said there was no discussion about how he would get the bike back again; he knew how he would get it back—the way it came—in the boot of the car. But, of course, the police officer gave evidence, as I have indicated, that there was a conversation about how the bike would get back and the applicant‘s witness, Mr Upton confirmed this, thus supporting her account that it did not get to the race track in the boot of the car.

It is not necessary to deal with all the particulars, I will just refer to the remaining four. There is a complaint that the learned magistrate erred in finding the defendant was coming down an incline into the driveway, there being no evidence that the road was on an incline. Well, as Mr Perks observed across the bar table when a submission was put in support of this particular, it is difficult to see how the bike could have coasted along the road unless it was going down an incline. In any event, the police officer said that the applicant was coming down the roadway. The particulars also complain that the learned magistrate relied upon an erroneous finding, the one I have just referred to, to support the contention that the applicant had locomotive power to control the vehicle. He did not make any finding about locomotive power, but the law to which I have just referred makes it clear that locomotive power does not have to come by way of the vehicle’s engine. The particulars also complain that there were some inconsistencies in the evidence of the police officer. That is true, but with respect to the important matters, she was pressed at great length in cross-examination and there were no inconsistencies at all. Indeed, such pressing elicited evidence that the applicant made a clear admission that he had ridden his motorcycle from Cowle Road, which, of course, is quite some distance away. Finally, the particulars complain that the evidence of the police officer as to an act of driving is inadequate to support a finding that the applicant was driving a motor vehicle. That is not a particular of an unsafe or unsatisfactory verdict; it is a repetition of the other ground in the motion to review with which I have already dealt.

For those brief reasons, the motion to review is dismissed.