Steven John Winbank v R A Baker [1993] ACTSC 30; (1993) 112 FLR 466 (7 April 1993)

SUPREME COURT OF THE ACT

STEVEN JOHN WINBANK v R A BAKER
No. SCA6 of 1993
Number of pages - 15
Vehicles and Traffic
[1993] ACTSC 30; (1993) 112 FLR 466

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J(1)

CATCHWORDS

Vehicles and Traffic - Offences - Driving whilst disqualified - Negligent driving - Alleged offences occurred whilst driving in a residential carpark - Whether a "public place".

Words and Phrases -

"Public place"
"Off-street parking area"
"Available for use by the public"
"Any other open place, to which the public has access".

Motor Traffic Act 1936 (ACT), ss.4(1), 4(5), 129(1A), 176, 193A(5)

R v Sagiv (1986) 22 A Crim R 73

R v Moody (1897) 8 QLJ 102

Dowling v Nominal Defendant (1975) 6 ACTR 17

R v Abrahams (1984) 1 NSWLR 491

Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd (1982) 1 NSWLR 728

Debeaux v Bellis (1989) 9 MVR 351

HEARING

CANBERRA, 18 February 1993
7:4:1993

Counsel for the Appelant: Mr R Mildren

Instructing solicitors: Messrs Stacy and Nyman

Counsel for the Respondent: Ms P de Veau

Instructing solicitors: Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:
1. The appeals be upheld.

2. The convictions entered and the penalties imposed in consequence thereof be set aside.

3. The informations be dismissed.

DECISION

HIGGINS J These are appeals from a decision of Magistrate Ward made on 19 January 1993. The appellant had been charged with two offences. It was alleged that he,

"... on the 20th November 1992, being a person who was
disqualified from holding a driving licence until such time as the
Magistrates Court declares him to be a fit and proper person to
hold a driving licence, did, before that time, drive a vehicle, to
wit, motor car registration number NSW SIT 989 upon a public
place, to wit Burnie Court."
"... on the 20th November 1992, did drive a vehicle, to wit,
motor car registration number NSW SIT 989 upon a public place, to
wit, Burnie Court, negligently."

2. The learned Magistrate was informed by the appellant's then solicitor that the appellant pleaded guilty to those charges. The two charges arose out of the same fact situation.

3. The facts which were presented to his Worship were brief. The prosecutor stated,

"... police attended the area of 164 Burnie Court in Lyons
regarding a threat to a person and upon arrival they observed a
blue Torana hatchback performing a burn-out within the carpark.
They approached a male person closer to the vehicle and asked who
was the driver and he admitted that he was the driver. The male
person - it was established that he was a disqualified driver and
he had no form of identification. He said that his name was
Steven John Winbank of no fixed place of abode and that he was
unemployed.
The burn-out marks measured 42 metres in length and the vehicle
bore tyres of the same width as the mark. Registration of the
vehicle was owned by Michael John Winbank, a New South Wales
vehicle, the defendant's father. Burnie Court
carpark is a public place in the ACT open to use by the public. I
tender the prior record."

4. A plea in mitigation was made. In the course of it the appellant's solicitor mentioned that the appellant had not been sure that he was on a road "but it has been explained to him that it was a public street and a public thoroughfare".

5. His Worship responded,

"From my knowledge of the carpark at Burnie Court, Lyons, it
would be busier than most roads. There are more people around
there too to be run over."

6. In sentencing the appellant, his Worship noted that he had been before a Court on three prior occasions, for driving while disqualified. He described the appellant's manner of driving as "negligent and foolhardy". Although the description of the appellant's driving was brief, that was probably fair comment. It was noted the appellant also had three prior convictions for dangerous driving. In total, he had 14 traffic matters and 10 criminal matters recorded against his name.

7. On the first charge, his Worship sentenced the appellant to six months imprisonment. On each charge he made an order further disqualifying the appellant from holding any driving licence. On the second charge, a conviction was recorded but no other penalty was imposed apart from that disqualification order.

8. An appeal was lodged that day in respect of each matter. It was against penalty only. The notice was partly incomplete. It did not state what part of the order was appealed from. Inappropriately, it sought an order, instead of that made,

"That the jail sentence be substituted for a Community Service
order."

9. Bail was refused.

10. On 5 February 1993, I refused bail but gave the matter an expedited date for hearing. I also raised a question as to whether the carpark in question had truly been a public place as had been alleged.

11. The matter proceeded on 12 February 1993. Unfortunately, the prosecution was not then in a position to proceed. That situation was brought about by the filing of an amended Notice of Appeal in relation to both matters on 5 February 1993. That Notice challenged conviction as well as penalty. It was necessary to adjourn the hearing to enable the prosecution to call evidence as to the nature of the relevant carpark. That evidence was heard on 18 February 1993. In view of the further delay, however, the appellant was granted bail.

12. Mr Jarman, a land surveyor, provided plans of the area. Ms Fisher of the ACT Housing Trust, gave evidence that the Burnie Court flats were managed by the ACT Housing Trust. The carparks in question were internal carparks for the use of residents and their visitors only, although from time to time residents had complained of persons abandoning vehicles there and some pedestrians had, occasionally, been seen walking across the carpark area. There was no physical barrier which would prevent a non-resident from using the carpark areas and, apart from towing away apparently abandoned vehicles, the Trust did not do anything positive to prevent access by unauthorised persons or vehicles. Photographs of the area, showing a typical carpark, were tendered.

13. It was alleged that the carpark was a public place. That matter had been formally admitted before Magistrate Ward. As a result, understandably, his Worship did not consider whether that admission was soundly based. Effectively, the appellant now seeks to change his plea. The ground for that change of plea is not that he disputes any objective fact alleged against him, he seeks to challenge only the legal characterisation of the place where the acts alleged against him were committed. It is contended that, if the carpark was not a public place, then the appellant was wrongly convicted. Justice requires, I think, that that course be permitted and the issue tested.

14. The prosecution, with commendable fairness, did not seriously oppose that course. That was a proper attitude to take (see, for example, R v Sagiv (1986) 22 A Crim R 73). If it appears that a plea of guilty has been tendered in error on the facts as alleged by the prosecution, a court virtually has a duty to order a change of plea (see, for example, R v Moody (1897) 8 QLJ 102).

15. That the carpark in question be a "public place" (or a "public street" though that was not alleged) was properly conceded to be an element of the charge of negligent driving (see s.129(1A), s.4(5) Motor Traffic Act 1936 (ACT) ("MTA")).

16. The offence of driving whilst disqualified from holding a driving licence is not expressed to include such an element (see s.193A(5) MTA). The disqualification order allegedly breached by the appellant had been imposed pursuant to s.193 MTA. The intention of the legislation is to be found by reference to s.176 MTA. That section makes it unlawful to drive a motor vehicle without an appropriate licence only if the vehicle is being driven on a public street or in a public place (see, also, s.4(5) MTA). It seems to me, therefore, that the MTA does not prohibit all driving of motor vehicles by unlicensed persons but only that driving which is regulated by the Act, namely, driving on a public street or in a public place. The prosecution plainly adopted that view in framing the charge in question. In my opinion, that view was a proper one to take.

17. It is, therefore, an issue, in these appeals as to whether the carpark in question was "a public place".
What is a "public place"

18. That expression is defined by s.4(1) MTA in the following terms:-

""public place" means -
(a) an off-street parking area;
(b) a loading area;
(c) a wharf, pier or jetty;
(d) the Lake Burley Griffin foreshores; or
(e) any part of a park, reserve, recreational or sporting ground,
racecourse, or any other open place, to which the public has
access whether with or without payment for admission, other than a
street, road or lane that is prepared with cement or concrete or
is sealed with bitumen or other sealing substance."

19. It is clear enough that none of (b), (c) or (d) above have any application to the present matter.

20. It was suggested that the carpark area in question was either an "off-street parking area" or "any other open place, to which the public has access ..."

21. The latter provision is, of course, relevant only if the area in question is not "an off-street parking area".

(a) An off-street parking area
22. That term is defined by s.4(1) MTA in the following terms -

""off-street parking area" means an area of land available for
use by the public, whether with or without the payment of money,
for the parking of motor vehicles, and includes -
(a) the entrances to, the exits from and the passageways in such
an area; and
(b) the area of land that is situated between the entrances to and
the exits from such an area and a public street and that is used
for access to the area;"

23. In this case, the area of land in question was "available for use ... for the parking of motor vehicles". The place on which the conduct in question took place was a bitumen paved area dividing and providing access to marked parking bays and individual carports. The latter were clearly intended for the use of residents of the flats. The former parking spaces were for the motor vehicles of residents who had no carport allocated or had more than one vehicle or for the vehicles of their visitors or guests.

24. Connor J, in Dowling v Nominal Defendant (1975) 6 ACTR 17, considered the effect of a similar definition. His Honour said,

(24) "The essential element of an "off street parking area"
seems to be only that it should be an area of land available for
use by the public for causing or permitting motor vehicles to
remain standing, irrespective of the duration or the purpose of
the standing."

25. The addition of sub-paragraph (b) and the alteration of the format of the definition, effected in 1978, does nothing to render that summation of the effect of the definition inapplicable.

26. The essential question is whether this area of land was "available for use by the public" for the purpose of the parking of motor vehicles. The facts are that it was not so used save that, in some instances, vehicles had been abandoned there, later to be towed away at the behest of the ACT Housing Trust. The area was not barred to public entry in any physical sense. There were no signs expressly forbidding public entry. There were no patrols to enforce exclusivity of usage. However, I infer that if a resident discovered an unauthorised person using his or her assigned parking space or if visitors were unable to find a space because of usage by unauthorised persons, then there would have been complaints. There was no evidence of any such usage.

27. O'Brien CJ of Cr D examined the concept of public access and of areas "open to and used by the public" in R v Abrahams (1984) 1 NSWLR 491. I cannot detect any difference in meaning between an area described as "available for use by the public" and an area referred to as "open to and used by the public".

28. Having reviewed numerous decisions, many relating to carparks attached to various categories of premises, his Honour concluded,

(541) "Necessarily then, it seems to me, the quality of
openness (to the public) is governed by the purpose for which the
premises in question are designed and intended. Members of the
public who take advantage of that openness are therefore
realistically confined to that section of the populace which has
an interest in the purpose for which the premises are designed and
intended and which finds it convenient to go to them in pursuit of
that interest."

29. By way of contrast, a "members only" carpark attached to a private club, used by members, guests and trades visitors to the club would not be "open to the public". Nor would a market, during such time as it was open only to members of a produce association. Public baths, when open only to members of a particular swimming club, would not be open to the public. The reason for the distinction his Honour expressed as being,

(542) "... because the members of that section of the public
who have an interest in using the premises for that use were not
permitted indifferently and without discrimination to put them to
that use. It matters not that a fee is charged or some other
condition is imposed for their use so long as the members of the
public, or rather that section which is interested in their use,
may comply without selection or discrimination with the conditions
for their use."

30. Clearly enough, the existence of the flats, for private residential purposes, provided no invitation to the public to use the carpark in question for the purpose of parking. The fact that a person might park there, if that person had business to transact, whether of a commercial or social nature, with a resident, would not render that parking area available for the use by "the public".

31. There is no evidence that members of the public actually used the area in question for parking. The occasional abandonment of vehicles there does not contradict that conclusion.

32. I conclude, therefore, that the parking area in question is not an "off street parking area" as defined.

(b) ... any other open place, to which the public has access ...
33. There was evidence from which it could be concluded that some members of the public had used the parking area or the passageway or driveway thereof as a means of walking across the area, possibly, en route to some other destination. It would not be possible for a person in a vehicle to do so as the area is a "dead-end". A pedestrian could, however, use the area as a thoroughfare to pass across the area of land in question en route to some destination other than the flats themselves. Ms Fisher, who gave evidence of such usage, could not be sure whether or not the pedestrians she saw were residents or visitors. She simply did not recognise some persons she had seen in the area as being residents. I could not conclude positively that the parking area was usually or regularly used by members of the public as a thoroughfare.

34. Even if I was wrong as to that conclusion, it does not follow that the respondent would succeed.

35. The area in question seems, in character, to be similar to the passageway in the Sandgate Markets at Newcastle referred to in Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd (1982) 1 NSWLR 728. In that case, a person walking along one of those passageways was struck and injured by an unregistered fork lift. The question was whether the Nominal Defendant was liable. In turn, that question depended on whether the passageway was a "public street". That term included, by definition, any "place open to the public". It was held capable of being a public street, so long as it was open to be used by members of the public, even though the only members of the public using the passageways were pedestrians not drivers of motor vehicles.

36. In relation to the definition with which I am now concerned, Connor J, in Dowling v Nominal Defendant (supra) said,

(20) "I think that when the legislature speaks of "any other
open space, to which the public has access ..." it refers to a
place which has three characteristics; first that it is a place
"other than a park, reserve etc"; secondly, that it is "open" in
the dictionary sense to which I have referred (that is, "not
closed or blocked up allowing of entrance or passage or access,
having gate or door or lid or part of boundary withdrawn"), that
is to say that it allows of access, and thirdly, that the public
do in fact enjoy access to it."

37. Both the court of Appeal in Mercantile Mutual Insurance Co Ltd v W Turner (supra) and Connor J in Dowling v Nominal Defendant (supra) made it clear that regard must be had to the purposes of the legislation in question in determining whether a narrow or broad view should be taken of the relevant definition.

38. Access to indemnity by a driver and/or owner from a third party insurer and action by an injured person against the Nominal Defendant is dependent on the vehicle causing the injury in question being used on a public street or in a public place at the time.

39. Connor J in Dowling (supra), observed,

(19) "It does not strike me as likely that, in provisions
designed primarily for the protection of injured persons, the
legislature would provide that some places to which the public has
access should be covered, but not others."

40. Of course, the public access in question must be with the permission, express or implied, of the owner or other person with lawful authority to permit or forbid entry (see, for example, Debeaux v Bellis (1989) 9 MVR 351 per Walsh J).

41. It seems obvious to me that persons "passing through" the parking area on foot (or, perhaps, on bicycles, skateboards or roller blades) are not and were not at the relevant time, forbidden to do so. The absence of fences and like barriers indicates it was physically open to them to do so. There was not, however, any invitation to them to do so. If, however, the evidence established that the parking area was in fact used by members of the public, with sufficient regularity, as a pedestrian thoroughfare, it would be an area "to which the public has access".

42. Accordingly, it would, on that assumption, be possible to find that the carpark area came within the definition of a "public place" but for the effect, if any, of the proviso to sub-paragraph (e).

43. That proviso reads as follows,

"... other than a street, road or lane that is prepared with
cement or concrete or is sealed with bitumen or other sealing
substance."

44. There is no doubt that the place where the appellant was driving was "sealed with bitumen". Is it a "street, road or lane"?

45. Those terms are not separately defined. A street refers to a pathway usually wider than would be appropriate for a lane or alleyway. A road has the connotation of being a pathway which is an ordinary line of communication between different places and used by travellers, whether pedestrian or otherwise. A "lane" is a narrower pathway, usually between houses or walls. The passageway here, as shown on photographs tendered would be more appropriately labelled a "lane" rather than a "street" or "road".

46. If a "street, road or lane" is "open to or used by" the public and is not either "an entrance - driveway leading to a parcel of land" or "any part of a public place" it will be a "public street".

47. The proviso would have simply needed to say "other than a public street" if that was all that was intended. It is also puzzling that whilst the definition of "public street" expressly includes a "footpath", the proviso to sub-paragraph (e) omits such a reference.

48. It may be that a footpath in a park, reserve etc, however prepared or sealed, if open to public use, is intended to be regarded as both a public street and a public place, whereas a street, road or lane, unless unsealed, can be only a public street. The subtle legislative policy behind this distinction regrettably eludes me.

49. Fortunately, no concluded view needs to be expressed as to whether Ms Fisher's evidence as to the occasionally observed pedestrian transforms what otherwise would be a private carpark into a "public street". The informations in question do not allege that the carpark area was a "public street".

50. It could be that the area is an "entrance driveway leading to a parcel of land". Such a driveway, whether sealed or not, is expressly excluded from the definition of "public street". I express no opinion as to whether this area would be excluded on that basis from that definition.

51. The form of each information confines the allegations to an assertion that the passageway of the carpark was part of a "public place". It is, at least, clear that it was not such a place. The use of the area by members of the public for pedestrian access would not, by reason of the proviso to sub-paragraph (e), transform the carpark into a "public place" even if it was possible to transform it into a "public street".

52. It follows that the appeals must be upheld. The convictions entered and the penalties imposed are set aside accordingly. The informations as framed are dismissed.

53. I will hear the parties as to costs.