Police v THOMPSON - [2006] SASC 20

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v THOMPSON
Judgment of The Honourable Justice Vanstone
31 January 2006
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
Police appeal against acquittal of driving with prescribed concentration of alcohol - facts of matter not in dispute - mechanical defect causing accelerator to "stick" - whether motion of vehicle caused by respondent's voluntary acts - whether respondent "driving" vehicle. Held: appeal allowed.
Road Traffic Act 1961, s 5(1), 5A, 47B; Magistrates Court Act 1991, s 42(5), referred to.
Bassell v McGuiness (1981) 29 SASR 508; Kroon v The Queen (1990) 55 SASR 476; Jiminez v The Queen (1992) 173 CLR 572; R v Spurge [1961] 2 QB 205; Hill v Baxter [1958] 1 QB 277, considered.

POLICE v THOMPSON
[2006] SASC 20
Magistrates Appeal
VANSTONE J:
Introduction

The respondent pleaded not guilty to driving while having the prescribed concentration of alcohol in his blood. The central issue at trial was whether he had been deprived of control of the vehicle by reason of the accelerator “sticking” and was therefore not driving at the relevant time. The magistrate acquitted, and this is an appeal from that decision.
Background
The offence was alleged to have occurred on 7 May 2005 in the late afternoon, just outside the appellant’s home at Borlase Street, Ceduna. The respondent said in evidence that on that day he had been watching football and had consumed three “stubbies” of light beer. He decided to wash his car, a Commodore sedan with automatic transmission. He determined to move it from its position in the driveway to the front lawn for that purpose. That involved reversing a short distance without leaving his property, then turning on to the adjacent lawn. (Since the Road Traffic Act 1961, by s 5A, applies only to “roads”, such action would not have amounted to an offence.)
The respondent said in evidence that when he started reversing and was still in the driveway, the car “took off on me, full revs.” He said the accelerator stuck and “away it went.” He said he did not really have control of the car and he did not have time to apply the brakes. The car left his property, crossed the road and hit a stump on the other side. He said he had not, earlier, known of any problem with the accelerator. He said he hit his head in the collision and afterwards took some neat brandy for the shock. He reported the matter to police who attended and required him to undergo a breath analysis. His reading was 0.207 grams in 100 millilitres of blood.
The vehicle was towed away two days later to a compound at Ceduna Machinery. In August it was examined by a diesel mechanic who gave evidence that he found that after it was depressed, the accelerator was slow to return to its normal position. He inspected and replaced the cable, which he found to be in a dirty condition, as was the inside of the carburettor.
In closing submissions the prosecutor conceded that the accelerator had stuck “at some point”.
The magistrate gave comprehensive reasons for his decision. He referred to authorities regarding the meaning of “drive” as used in s 47B Road Traffic Act, including Bassell v McGuiness (1981) 29 SASR 508; as to voluntariness in the context of driving: Kroon v The Queen (1990) 55 SASR 476; Jiminez v The Queen (1992) 173 CLR 572; and as to the relevance of a mechanical defect in the car: R v Spurge [1961] 2 QB 205. He found that as a result of the mechanical failure the respondent was not “driving” the vehicle at the relevant time.
Upon appeal the principal argument put by the appellant was that, having regard to the basic facts of the matter – which were in almost all respects uncontested – the magistrate reached a decision which was simply not open to him. It was submitted that the magistrate must have confused the issues of voluntariness and intention. Alternatively it was said that the Magistrate should have found that at all times the respondent retained a sufficient measure of control over the vehicle to mean that he was driving it and was therefore liable to be convicted.
Analysis
I draw from the magistrate’s discussion of the cases that the principle applied by him is encapsulated in the following passage of his reasons:
Whilst the emphasis in the abovementioned decisions is on “defects”, it was accepted that such defects may give rise to a situation where the driver is no longer in control of the motion of the vehicle and to that extent, the movements of the vehicle are no longer a result of his or her voluntary actions.
In my respectful opinion, the question of voluntariness was logically antecedent to, and had little to do with, the real issue in the trial. If anything, dwelling on voluntariness served only to obscure the true issue. This was not a case where a mental or physical infirmity, such as heart attack, epileptic fit, stroke or sudden unconsciousness in the driver, was such as to cause him to perform physical actions which were not the product of his will. Nor was it a situation where another person forced the driver’s hands or feet, so as to propel the vehicle in a particular way. Here, insofar as he exercised, or sought to exercise control over the vehicle, the respondent’s actions were certainly voluntary.
The real question was whether, despite the impact on the vehicle’s behaviour of the sticking accelerator, the respondent was proved to be actually driving the vehicle, so that criminal responsibility attached to his actions.
Had the charge been one of driving dangerously, the relevant issue might be seen as one of causation and the malfunction of the accelerator as, arguably, a novus actus interveniens (cf. Hill v Baxter [1958] 1 QB 277 at 282-283 per Lord Goddard CJ). However, since the actus reus of the offence under consideration is, simply, driving, it seems preferable to frame the question in this way, that is, as whether he was proved to be driving the vehicle on a road.
In s 5(1) the Road Traffic Act provides only that “drive includes be in control of”. In Bassell v McGuiness King CJ, with whom Mohr J agreed, considered the meaning of the word “driving” in the Act, in the context of a person managing a vehicle which was being towed by another vehicle. His Honour noted that the defendant could operate the brakes, indicator, warning device, steering and lights of the vehicle. He therefore had something to do with the movement and propulsion of it. King CJ considered that such a degree of control meant that the defendant was indeed driving, both in the ordinary sense of the word and as the word was employed within the Road Traffic Act. In Bassell v McGuiness the court declined to follow a line of interstate and overseas authorities that supported the proposition that in order to drive a vehicle, the person managing it must have control over the means of propulsion. As I understand it, the effect of our Court’s decision is that control over the propulsion of the vehicle is a factor, but not the determining factor, in deciding whether a person is driving a vehicle.
In the case of the respondent, he maintained the ability to operate all the functions of the vehicle, including, relevantly, the brakes, steering and transmission. The defect in the vehicle’s operation had the effect of prolonging any opening of the throttle by the respondent, as opposed to spontaneously opening it, or magnifying the degree of it. In my mind, such a measure of control clearly meant that the respondent was, at all times, driving the vehicle.
It was suggested by counsel for the respondent that in the circumstances of this matter, the time period between the accelerator malfunctioning and the collision and the distance the car travelled during that period was extremely limited, giving the respondent little time to gather his wits and regain control of the car. In other circumstances such an argument might have some force. But I do not think it avails the respondent here. Photographs of the streetscape, with relevant measurements, were tendered at trial. In my view the respondent had ample opportunity, over the relevant distance, to compensate for the condition of the accelerator. The fact that he was unable to do so was, no doubt, attributable to his being markedly affected by liquor.
Indeed if, as the respondent claimed, the vehicle travelled extremely quickly across the roadway to its resting place, then that indicates that the accelerator was depressed by him to an extent far greater than demanded by the simple manoeuvre he claimed to be undertaking.
Conclusion
I consider that to reach the conclusion that he did, the learned magistrate must have misapplied the correct principle. In all probability the discussion of voluntariness obscured the real issue. In my view, had he applied the true principle, then the Magistrate inevitably would have found that the respondent was sufficiently in control of the operation of the vehicle, throughout its short journey, to be driving it, both as the Road Traffic Act employs that word and as a matter of common usage.
The other factual matters going to prove the charge were not in issue. The magistrate was satisfied of each. I consider it appropriate to utilise the power given me in s 42(5) Magistrates Court Act 1991 to quash the magistrate’s order dismissing the complaint and in its place to record a conviction. In relation to the matter of penalty, there is an area of fairly wide discretion. Moreover, counsel for the appellant was inclined to make certain concessions. In those circumstances I consider that it is appropriate to remit the matter to the magistrate for further hearing, as to penalty.
Orders
I make the following orders:
1. allow the appeal;
2.set aside the judgment of acquittal, the order dismissing the complaint and the order as to costs;
3.substitute for the order dismissing the complaint an order that a conviction be recorded;
4.remit the matter to the magistrate for further hearing in respect of penalty.
I shall hear the parties as to costs.