Peter Van Schaik v Stephen Peter George Neuhaus [1996] ACTSC 37 (1 May 1996)

SUPREME COURT OF THE ACT

PETER VAN SCHAIK v. STEPHEN PETER GEORGE NEUHAUS
No. SCA 83 of 1995
Number of pages - 8
Criminal Law - Human Rights

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Criminal Law - statutory offence - appeal from conviction by Magistrate - refusal of cyclist to wear helmet without reasonable cause contrary to s.6C(1) of Traffic Act 1936 - onus on prosecution to prove absence of reasonable cause - meaning of "without reasonable cause" - subjective and objective elements - issue is not the reasonableness of what is believed but whether that belief is reasonably held - bona fide belief of defendant not reasonably held is not reasonable cause.

Human Rights - whether compulsory wearing of helmets is denial of human rights - 1947 Universal Declaration of Human Rights not part of Australian domestic law - Article 29 of Declaration relevant only if capable of forming basis of defendant's beliefs at time of offence - Article 29 not a charter for conscientious objections to particular laws.

Traffic Act 1937, sub-s.6C(1)

Customs Act 1901 (Cth), s.233B
Road Safety Act 1961 of South Australia
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Human Rights (Sexual Conduct) Act 1994
Motor Traffic Act 1936, s.164B and s.164C

He Kaw Teh v. The Queen [1985] HCA 43; (1985) 157 CLR 523
Zecevic v. Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645 at 654

(Mason CJ)

Ryan v. The Queen [1967] HCA 2; (1969-70) 121 CLR 205 at 216-7 (Barwick CJ)
Bottomley v. Symons (1982) 31 SASR 18 at 19
Czerwinski v. Hayes (1987) 47 SASR 44
Mabo v. Queensland (No. 2) (1992) 175 CLR at 42
Dietrich v. R [1992] HCA 57; (1992) 177 CLR 292 at 321 (Brennan J)
R v. Phillips and Pringle (1973) 1 NSWLR 175

HEARING

CANBERRA, 15 April 1996
1:5:1996

The appellant appeared in person

Counsel for the respondent : Mr. S. Wybrow

Solicitors for the respondent : ACT Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The Magistrate's fine of $41 to be paid within 28 days
be confirmed.

DECISION

MILES CJ Beside the lake on a late summer afternoon, Constables Newhaus and Cameron of the Tuggeranong Bicycle Patrol stopped an unhelmeted cyclist. Little did they realise that the cyclist they had stopped was Mr. Peter van Schaik, a man with a long-standing and deeply felt conviction that the requirement of the law that a cyclist wear a helmet is an infringement of his civil liberties and an actual risk to the safety of cyclists. Mr. van Schaik, in no uncertain terms, told the constables of his belief. He expanded upon that belief and the reasons for it when he was subsequently prosecuted on summons for breach of the Traffic Act 1937, sub-s.6C(1), in that on 27 February 1995 he rode a bicycle in a public place, to wit, a cycle path near Greenway, without reasonable cause not wearing a helmet. He was convicted by the Magistrate and appealed to this Court.

2. The issue is whether Mr. van Schaik's belief constituted reasonable cause for not wearing a helmet at all. The proper construction of sub-s.6C(1) places the onus of proving the absence of reasonable cause on the prosecution. In practical terms, once the other elements of the offence are made out beyond reasonable doubt, there is a persuasive burden cast upon the defence to point to something in the evidence which constitutes reasonable cause for not wearing a helmet. Once there is raised any matter capable of constituting reasonable cause, the prosecution must exclude the possibility that such matter in fact constitutes reasonable cause. The question whether the prosecution has proved absence of reasonable care is a question of fact. The principles are plain enough and are well established in relation to other statutory offences in which absence of reasonable cause (however expressed) is an element: see He Kaw Teh v. The Queen [1985] HCA 43; (1985) 157 CLR 523 in respect of s.233B of the Customs Act 1901 (Cth) as well as in certain areas of the common law of criminal liability such as self-defence or automatism: Zecevic v. Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645 at 654 (Mason CJ); Ryan v. The Queen [1967] HCA 2; (1969-70) 121 CLR 205 at 216-7 (Barwick CJ). The general principles need to be articulated in the present appeal, because, as I understand it, this Court has not dealt previously with a charge under sub-s.6C(1) of the Traffic Act and the general principles were not adverted to during argument or in the Magistrate's decision.

3. Mr. van Schaik appeared for himself both before the Magistrate and in the appeal. He submitted that the reasonable cause for his not wearing a helmet whilst riding a bicycle on the day in question was constituted by all or any of the following:

1. His belief that wearing a helmet increased the risk of
head injury.
2. His belief that wearing a helmet increased the severity
of any head injury that he was likely to sustain whilst
riding a bicycle.
3. The common law right to refuse medical treatment.
4. A denial of his human rights as expressed in Article 29
of the Universal Declaration of Human Rights 1947.

4. The first two of these matters may be considered together and I shall return to them. The third matter, the so-called right to refuse medical treatment, was a matter which took up some little time during the hearing of the appeal, with detailed reference to case law not usually presented by someone without training in legal research. However, Mr. van Schaik was unable to appreciate that these cases were entirely irrelevant to the issue of reasonable cause. Mr. van Schaik was entitled to choose not to respond to my invitation to inform me whether his argument on this aspect was prepared by a lawyer. I remarked at the time, and repeat, that practitioners who do not appear in court to defend the advice they give clients who go on to represent themselves in court, do not render the profession or the court a service. It is questionable how far they do their clients any service. The argument over the right to refuse medical treatment and the comprehensive survey of case law on that right was simply beside the point.

5. Ultimately it is the question of Mr. van Schaik's belief which must be examined in order to ascertain whether it constituted reasonable cause, or more precisely, whether it stood in the way of the prosecution proving beyond reasonable doubt that Mr. van Schaik lacked reasonable cause for riding a bicycle without a helmet.

6. Counsel for the Director of Public Prosecutions, representing the respondent to the appeal, submitted that the question was governed by the purpose of the relevant provisions of the Traffic Act, which is clearly to ensure the safety of cyclists in public places and that it was not for the appellant to choose for himself which requirements of the Act he would obey and which he would not. The argument is simplistic and does not address the issue how far reasonable cause might be constituted by belief. Mr. van Schaik cited a number of cases which were not really helpful on this issue. Counsel for the respondent cited none. Reference might have been made to at least two decisions in the Full Court of the Supreme Court of South Australia which are to the point and of considerable assistance.

7. Both cases were concerned with provisions in the Road Safety Act 1961 of South Australia which made it an offence for a driver to refuse to submit to an alcotest unless there was "good cause" for the failure. The legislation cast the onus of proving "good cause" onto the defendant. Otherwise the issue of what constituted good cause was similar to the issue of reasonable cause under sub-s.6C(1) of the Traffic Act 1937 of the ACT. On that issue King CJ said in Bottomley v. Symons (1982) 31 SASR 18 at 19:

"It seems to me that if a belief is to be relied upon as good
cause for refusal or failure to comply with a requirement to
submit to an alcotest or breath analysis or with a direction in
relation to such a requirement, it must be a belief which is
reasonably held. It is not the reasonableness of what is
believed, considered objectively, which is in question, but the
reasonableness of the defendant's conduct in holding the belief.
Thus a belief, entertained as a result of medical advice, that
exhaling into the unit would be seriously harmful to health,
might well amount to good cause, although the medical advice
relied upon be unsound and unreasonable. The appellant,
however, put forward no reasonable basis for holding the belief
upon which he relied as good cause."

8. Wells J said at 23:

"According to the statutory defence, there must, as I read
sub-s.(4) be both a 'cause' and an attribute of the cause -
that is, it must be 'good'.

A man's belief may be the cause of his refusal, if the belief
is genuine, that is, really and true held.

But men may hold all manner of beliefs, every one of which may
be the cause of a refusal, without any one of them amounting to
a 'good' cause. The belief is subjective, but the attribute
'good' is objective, and must be related to actual facts in the
existence of which there were good grounds to believe."

9. Jacobs J agreed in principle with King CJ but added at 24:

"..... the ambit of so wide an expression as 'good cause' may
have to be determined in due course from 'a multitude of single
instances', rather than by any attempt at an a priori judicial
exposition."

10. In the later case of Czerwinski v. Hayes (1987) 47 SASR 44, the words of Jacobs J were echoed in the judgment of King CJ, with whom Prior J and Olsson J agreed, to the effect that the expression "good cause" is of wide import and is subject only to the language or evident purpose of the Act, and that it is unwise to attempt a precise definition. Olsson J went on to say at 61:

"..... I unhesitatingly agree that it is both impractical and
undesirable to attempt a precise definition of what constitutes
'good cause'. It seems to me to be beyond argument that the
legislature deliberately set out to vest in the court a very
wide discretion to identify peculiar facts which could fairly be
held to exculpate a defendant where the justice of the case so
demanded, provided always that the clear policy of the section,
read as a whole was borne firmly in mind.

Whilst it is beyond doubt that the statutory definition requires
there to be both 'cause' and an attribute that it be 'good' the
difficulty which I have with the concept espoused by Wells J in
Bottomley v. Symons (supra) is that I am unable to accept that
the statute goes so far as to require the attribute to be good
in the sense that it must, for example, be based on sound
scientific theory. To my mind the two critical elements must
necessarily be the possession of some reasonable and relevant
genuine belief by the defendant and evidentiary material from
which it appears that in the particular case, the holding of
that belief by the defendant was reasonable having regard to the
circumstances in which he formed it. In my opinion it matters
not that the belief was, in terms of pure scientific theory,
untenable or ill-founded. What is important is that the
defendant genuinely formed the relevant belief upon a basis
which the court, in the specific circumstances related to that
defendant, is prepared to characterise and accept as
reasonable."

11. These remarks, in my respectful view, apply in a general sense to the matter of "reasonable cause" arising under sub-s.6C(1) of the Traffic Act. Mr. van Schaik's subjective belief that the wearing of a helmet increased the risk or the seriousness of injury whilst riding a bicycle, was, it seems, accepted by the Magistrate and there is no need for me to question that finding. What is really in question is whether Mr. van Schaik reasonably held that belief. In order to show that the belief was reasonable, Mr. van Schaik sought to put before the Magistrate a voluminous amount of written material consisting of articles, newspaper clippings and the like, which could be taken to be evidence going to support the reasonableness of a belief. He now complains that the Magistrate did not admit that evidence, or took no notice of it. A reading of the transcript suggests that the Magistrate had the material before him, but it was never tendered as evidence by Mr. van Schaik. On the hearing of the appeal Mr. van Schaik sought leave to tender that material. Most of it appears on its face to have been published subsequent to the alleged offence and when Mr. van Schaik was given leave to go into the witness box to swear that he had read some of the material before the date in question, so that it provided a basis for his belief on that date, he was unable to so swear. The extrinsic written material was therefore inadmissible. It is the reasonableness of the belief, seen in the light of the circumstances at the time which is relevant, not seen in the light of facts and circumstances which came to the knowledge of Mr. van Schaik at some later date.

12. In any event I do not think that the inadmissibility of the written material is of any real consequence. It is within the judicial knowledge of courts in this Territory that there are differing views in the community as to the efficacy of bicycle helmets. It is further within the judicial knowledge of courts that the predominance of opinion is that the wearing of helmets decreases and does not increase the incidence and seriousness of head injuries suffered by cyclists. It is of no great significance, however, that that happens to be the predominant view except insofar as it tends to support a construction of the section of the Traffic Act which is otherwise obvious enough from the words of the section itself within the context of the Act. The Traffic Act has as one of its purposes the reduction of death and injury caused by moving traffic, including bicycles. Whether scientifically correct or not, the proposition that the wearing of helmets promotes the safety of cyclists has clearly been accepted by the Legislative Assembly of this Territory and is reflected in the provisions of sub-s.6C(1). The evidence in the present case does not establish that Mr. van Schaik's belief went beyond a simple assertion that sub-s.6C(1) did not promote what he called "the purpose and mischief" of the Act.

13. Finally there is the issue of whether the legislation infringes Mr. van Schaik's human rights and his belief that it does so. It needs to be said first that the 1947 Universal Declaration of Human Rights has never had any legal force in Australia. More to the point might be the International Covenant on Civil and Political Rights (ICCPR). Australian courts take judicial notice of the fact that Australia is a party to the ICCPR: see Mabo v. Queensland (No. 2) (1992) 175 CLR at 42; Dietrich v. R [1992] HCA 57; (1992) 177 CLR 292 at 321 (Brennan J). Although the provisions of the ICCPR as such have not been enacted into Australian law, some Commonwealth legislation appears to have been enacted in pursuance of Australia's obligations as a signatory to the ICCPR: see the Human Rights and Equal Opportunity Commission Act 1986 (Cth) to which the ICCPR is scheduled and discussion thereof by Mason CJ and McHugh J in Dietrich v. R at 305; also see Human Rights (Sexual Conduct) Act 1994. Be that as it may, I was not able to find anything in the ICCPR to support Mr. van Schaik's belief that he was justified in riding a bicycle without a helmet.

14. In any event, it was Article 29 of the 1947 Universal Declaration of Human Rights upon which Mr. van Schaik expressly relied:

"Article 29

1. Everyone has duties to the community in which alone the free
and full development of his personality is possible.

2. In the exercise of his rights and freedoms, everyone shall be
subject only to such limitations as are determined by law solely
for the purpose of securing due recognition and respect for the
rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare
in a democratic society.

3. These rights and freedoms may in no case be exercised
contrary to the purposes and principles of the United Nations."

15. As Article 29 is no part of the Australian domestic law, it cannot provide any basis for founding some legal right which might legitimise conduct otherwise prescribed by the Australian law. Nor does it provide a basis for striking down sub-s.6C(1) of the Traffic Act as unconstitutional or invalid. Nevertheless, it was open for Mr. van Schaik to argue that he had a belief that Article 29 of the ICCPR afforded him a basic human right which was infringed by sub-s.6C(1) of the Traffic Act and that it was that belief which constituted reasonable cause for him to ride a bicycle without a helmet. Reliance upon the Universal Declaration of Human Rights is not entirely irrelevant if it forms a basis for Mr. van Schaik's beliefs at the time. On a charge of malicious damage to property (chopping down the goal posts on a football field) the New South Wales Court of Appeal held in R v. Phillips and Pringle (1973) 1 NSWLR 175 that the trial judge was in error in refusing to allow the accused to put to the jury that they believed that they were acting in pursuance of a United Nations Resolution against apartheid. But it must be emphasised that the ultimate question in the present case is not one of admissibility but simply whether the basis for Mr. van Schaik's belief means that the act committed under the belief was done with reasonable cause. I am unable to see anything in Article 29 or any other provisions of the Universal Declaration of Human Rights which advances Mr. van Schaik's case on this issue.

16. Clearly, Article 29 does not even purport to give a person a right to refuse to comply with a law simply because such compliance infringes a genuine belief. Nor does Article 29 (still less the Traffic Act) provide a charter for persons who have conscientious objections to particular laws. Mr. van Schaik has not shown any basis for a belief that sub-s.6C(1) is a law that was made for some purpose other than the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society within Article 29(2).

17. Mr. van Schaik said that he had no objection to wearing a seat belt in a motor vehicle as required by s.164B and s.164C of the Motor Traffic Act 1936. He was not able to distinguish the difference in character between his own objection to having to wear a bicycle helmet and the objection others might entertain to wearing a seat belt on the ground that the wearing of a seat belt increased the risk and seriousness of any injury sustained in a motor vehicle collision.

18. No doubt a person who genuinely believes that obedience to the requirement of a particular law such as sub-s.6C(1) will jeopardise the personal health and safety of that person or the health and safety of others is placed in a difficult position, but in order to successfully resist conviction on the ground of failure to prove reasonable cause not to comply with the requirement, the evidence must raise more than the existence of the belief or the conviction that the person is entitled to act in accordance with the belief. In my view, the evidence in the present case goes no further than to show that at the relevant time Mr. van Schaik rode a bicycle without a helmet in the belief that to wear a helmet would increase the risk and seriousness of head injury. That cannot, in my view, amount to reasonable cause within the meaning of the section. The prosecution has proved to the requisite standard that in acting in accordance with his belief and deliberately riding his bicycle in a public place without a helmet, Mr. van Schaik acted without reasonable cause. The appeal will be dismissed and the Magistrate's fine of $41 to be paid within 28 days confirmed. Unless the respondent wishes to be heard, I propose to make no order as to costs of the appeal.