Stephen Morey v John Arthur Birch

[2005] ACTCA 26

STEPHEN MOREY v JOHN ARTHUR BIRCH [2005] ACTCA 26 (1 August 2005)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 9 - 2005
No. SCA 76 of 2004

Judges:  Crispin P, Connolly and Moore JJ
Court of Appeal of the Australian Capital Territory
Date:            1 August 2005

IN THE SUPREME COURT OF THE  )   No. ACTCA 9 - 2005
  )  No. SCA 76 of 2004
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEPHEN MOREY

Appellant

AND:JOHN ARTHUR BIRCH

Respondent

ORDER

Judges:  Crispin P, Connolly and Moore JJ
Date:  1 August 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. the appeal be dismissed.

IN THE SUPREME COURT OF THE  )   No. ACTCA 9 - 2005
  )  No. SCA 76 of 2004
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEPHEN MOREY

Appellant

AND:JOHN ARTHUR BIRCH

Respondent

Judges:  Crispin P, Connolly and Moore JJ
Date:  1 August 2005
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:

1. This is an appeal against a decision of Gray J, dismissing an appeal from a decision of a magistrate, convicting the appellant of an offence of failing to obey a direction of a police officer for the safe and efficient regulation of traffic.  Upon that conviction the appellant was fined the sum of $50 and ordered to pay court costs of $54. 

1. During the course of his reasons for judgment, Gray J provided a succinct outline of the circumstances that had given rise to the charge and it is, perhaps convenient if I quote from his Honour’s judgment.  His Honour outlined the circumstances in the following terms:

2.The matters that gave rise to the charge were that at about 11.50 pm on 9 April 2004, the appellant was driving a taxi with a number of intoxicated passengers from the football stadium at Bruce.  He was proceeding along Leverrier Crescent towards Tucker Street and Ginninderra Drive, Bruce.  These are roads that provide access to the football stadium, and involved him turning left from Leverrier Crescent into Tucker Street, which is a short access road leading directly onto Ginninderra Drive.

3.In company with Constable Van De Kamp, Sergeant Birch was conducting random breath testing duties at a point near where Tucker Street meets Leverrier Crescent, Bruce.  The area was dimly light [sic], the police vehicle’s emergency lights were activated and the police officers were wearing reflective vests and using torches.  Several other vehicles were stopped on the other side of Leverrier Crescent.

4. Sergeant Birch saw the appellant’s vehicle approaching along Leverrier Crescent and positioned himself in the path of the oncoming vehicle in Leverrier Crescent about 10 metres before Tucker Street.  Sergeant Birch took steps to indicate to the approaching vehicle to slow down by pointing his torch and directing the beam of the torch down towards the road on his right (the left for the approaching vehicle).  The appellant did not stop his vehicle but drove past Sergeant Birch by partially using the gravel verge of the roadway, and then turned left into Tucker Street.  Sergeant Birch gave evidence that, as the appellant’s vehicle past him he struck the roof of the vehicle.  Constable Van De Kamp gave evidence that had heard Sergeant Birch say, “Stop, stop”.

5. Sergeant Birch made a radio call and, some time later when the appellant was apparently informed by another policeman to return to the area, he returned to the intersection of Leverrier Crescent and Tucker Street, Bruce.  When the appellant returned, he had a conversation with, and provided his driver’s licence details to the police and he then left the area.  He was not breathalysed, nor was he issued with an infringement notice at the time.

1. His Honour proceeded to observe that two grounds of appeal that had been raised by the appellant, and those grounds have also been pressed during the course of the appeal before us.  The first ground relied upon the contention that the learned magistrate had fallen into appealable error in concluding that the traffic infringement notice had been issued improperly.  The second relied upon the contention that her Worship (as she was known at the time of the original hearing) had fallen into appealable error in finding the offence proved beyond reasonable doubt.  I will deal with these matters in turn. 

1. So far as the first ground is concerned, it is clear that the traffic infringement notice initially issued was withdrawn, and that a subsequent infringement notice was issued.  It seems to be common ground that the appellant failed to comply with that notice as he did not pay the penalty stipulated.  Ms Keys, who appears before us as she did before his Honour, has sought to argue that the second traffic infringement notice was invalid but, in my opinion, this contention does not raise any arguable ground of appeal. 

1. Section 22(2) of the Road Transport (General) Act 1999 (ACT) relevantly provides as follows.

This part does not-

(a)require an infringement or reminder notice to be served on a person; or

(b)affect the liability of a person to be prosecuted for an offence, if

(i)an infringement or reminder notice is not served on the person for the offence; or

(ii)the person does not comply with an infringement or reminder notice served on the person for the offence; or

(iii)an infringement notice served on the person for the offence is withdrawn; or

(c)prevent the service of 2 or more infringement notices on a person for an offence . . . 

1. Ms Keys argued that the second traffic infringement notice was invalid because subs (c) did not extend to the provision of a second infringement notice for the same offence, but was rather concerned with the issue of multiple infringement notices for multiple offences.  I would not interpret the subsection in that manner.  In my view, it was entirely open to the authorities to issue a second infringement notice once the first had been withdrawn. 

1. In any event, even if the second infringement notice had been invalid, that would merely have created a situation in which no valid infringement notice remained extant after the withdrawal of the first one.  Accordingly, there would still have been no circumstances that fell within the descriptions contained in subparagraphs (b)(i),(ii), or (iii) and hence had the effect of making the prosecution non-maintainable. 

1. So far as the second ground of appeal is concerned, Ms Keys argued three main points.  First, she submitted that it had not been open to the learned magistrate to find the offence proven because the officers in question had been conducting random breath testing and traffic enforcement duties, rather than duties relating to the flow of traffic.  Accordingly it could not be said that the direction given was a reasonable direction “for the safe and efficient regulation of traffic” as required by Australian Road Rule 304(1). 

1. Mr Refshauge SC, who appears for the respondent, has quite properly pointed out there is a more general provision in s 109 of Road Transport (Safety and Traffic Management) Regulations 2000, which authorises a police officer to request or signal a driver of a vehicle to stop the vehicle he or she is driving.  Failing to comply with such a request or signal without reasonable excuse is an offence under that section.  Ms Keys submitted that, if the appellant had committed any offence, it could only have been an offence under this section. 

1. However, as his Honour observed in his reasons for judgment, the direction given by the officer was not just a direction to stop, but a direction to pull over in a particular direction.  It seems clear from the evidence that that direction was given so that the appellant’s vehicle, once stationary, would not impede the flow of traffic, thereby alleviating, if not, removing, any risk that would have otherwise have been created by its presence on the roadway.  In these circumstances, I think his Honour was undoubtedly correct to find that the direction was a direction of the kind contemplated by Australian Road Rule 304. 

1. The second point which Ms Keys sought to make on behalf of the appellant was that the direction was ambiguous and did not clearly involve a direction to stop.  Having regard to the facts recounted by his Honour, the accuracy of which was not challenged on appeal, it seems to me that this submission is unsustainable.  The officer clearly indicated the direction in which he required the appellant to steer his vehicle by means of his torch, and, when the appellant did not stop, he banged on the roof of the vehicle as it passed him and apparently said the words; “Stop, stop”.  It was, I think, entirely open to the learned magistrate to find that the direction had been sufficiently clear and unambiguous. 

1. Finally, Ms Keys submitted that the appellant had, in any event, complied with the direction, albeit belatedly, because he had later been stopped and had returned to the area after receiving a verbal direction from another police officer.  Whilst that may be a matter that her Worship was entitled to take into account in relation to penalty, it does not seem to me to be a circumstance that would have required the learned magistrate to have concluded that the offence had been retrospectively nullified. 

1. For these reasons I have been unable to find any appealable error on the part of his Honour and I would dismiss the appeal. 

   I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, President Crispin.

   Associate:
   Date: 5 August 2005

IN THE SUPREME COURT OF THE  )   No. ACTCA 9 - 2005
  )  No. SCA 76 of 2004
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEPHEN MOREY

Appellant

AND:JOHN ARTHUR BIRCH

Respondent

Judges:  Crispin P, Connolly and Moore JJ
Date:  1 August 2005
Place:  Canberra

REASONS FOR JUDGMENT

CONNOLLY J:

1. I would also dismiss the appeal, and agree entirely with what the learned President has said in his reasons.  I add only that in circumstances where the appeal to this court being based on the same points that were run unsuccessfully below in the appeal from the magistrate to Gray J, this could well have been a situation where, had the Crown sought a cost order it may have been granted, and the appellant may consider himself fortunate that the Crown didn’t take that attitude on this appeal.  I would join the President in dismissing the appeal.

   I certify that the preceding paragraph numbered fourteen (14) is a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

   Associate:

   Date: 5 August 2005

IN THE SUPREME COURT OF THE  )   No. ACTCA 9 - 2005
  )  No. SCA 76 of 2004
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEPHEN MOREY

Appellant

AND:JOHN ARTHUR BIRCH

Respondent

Judges:  Crispin P, Connolly and Moore JJ
Date:  1 August 2005
Place:  Canberra

REASONS FOR JUDGMENT

MOORE J:

1. I would also dismiss the appeal for the reasons given by the President.  I join in the observations made by Connolly J on the question of costs.

   I certify that the preceding paragraph numbered fifteen (15) is a true copy of the Reasons for Judgment herein of his Honour, Justice Moore.

   Associate:
   Date: 5 August 2005

Counsel for the Appellant:  Ms J Keys
Solicitor for the Appellant:  None

Counsel for the Respondent:  Mr R Refshauge SC
Solicitor for the Respondent:  ACT Director of Public Prosecutions

Date of hearing:  1 August 2005
Date of judgment:  1 August 2005