Wojcicka v Moroney [2002] ACTSC 120 (6 December 2002)

Last Updated: 12 December 2002

GEORGE JOHN WOJCICKA v BEVAN PAUL MORONEY [2002] ACTSC 120 (6 December 2002)

CATCHWORDS

MOTOR TRAFFIC - allegation of failing to wear a seat belt properly adjusted and fastened - meaning of "properly adjusted" - whether requires lap sash belt to be worn across the chest even if inappropriate for medical reasons - whether provision for exemption from wearing a seat belt applies in such circumstances.

Australian Road Rules, rr 264, 267(3)

Roads Transport (Safety and Traffic Management) Regulations 2000 (ACT), reg 25

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 42 of 2002

Judge: Crispin ACJ

Supreme Court of the ACT

Date: 6 December 2002

IN THE SUPREME COURT OF THE )

) No. SCA 42 of 2002

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: GEORGE JOHN WOJCICKA

Appellant

AND: BEVAN PAUL MORONEY

Respondent

ORDER

Judge: Crispin ACJ

Date: 6 December 2002

Place: Canberra

THE COURT ORDERS THAT:

1. the appeal be upheld;

2. the conviction, penalty and orders be set aside;

3. in lieu thereof the charge be dismissed.

1. This is an appeal against a decision of a Magistrate convicting the appellant of an offence of contravening r 264(1) of the Australian Road Rules in the manner specified in the information, namely:

"That he in the Australian Capital Territory on 28 March 2001, being the driver, did not have his seat belt properly adjusted and fastened" [sic]

2. The form of the information appears to have been demurrable because the reference to "the driver" is not followed by any allegation that he was driving "a motor vehicle that was moving or stationary but not parked" which was an element of the offence charged. However, no point about this deficiency seems to have been taken before the learned Magistrate and none was taken on appeal.

3. The facts may be shortly stated. On the date in question Constable Moroney saw the appellant driving a taxi. He said in evidence that he "could see that [the appellant] was not wearing his seat belt" and explained that he "knew" that because he could not see the belt across his shoulder or chest and could see two belts hanging down vertically near the "B pillar" of the vehicle.

4. The appellant maintained that the seat belt had been fastened but that he had pulled it down and hooked it on the bottom of the seat adjuster before passing it over his lap and clipping it into the fastener. He had adjusted the belt in that manner because long standing injuries to his upper and lower spine made it inappropriate for him to drive with a portion of the belt running across his chest or neck. He had had steel plates and screws inserted in the lumbar region of his spine following fractures to vertebrae in that region some years earlier and had subsequently sustained further injuries to his neck requiring the removal of two discs, the insertion of bone grafts and successive operations to repair nerve damage. A certificate was tendered from a medical practitioner confirming that he "can only wear lap sash seat belt as he has had neck surgery and continues to have problems with his cervical spine".

5. The effect of the Magistrate's decision may also be shortly stated. His Worship said that he was "not satisfied that the defendant was wearing a seat belt across his lap". He explained that he was unable to be so satisfied because, if the appellant had been wearing the belt in the manner claimed, he would have expected him to have informed Constable Moroney and told him of the reason for doing so. Accordingly, he found the offence proved.

6. Judgement was given extemporaneously and in such cases due allowance should be made for the fact that the judge or magistrate has not had the opportunity of correcting any slip of the tongue as one may do when proofreading the draft of a written judgment. In the present case, however, I am unable to accept the respondent's submission that the passages in question reveal mere clumsiness of language. On the contrary, it seems clear that the burden of proof was effectively reversed. Accordingly, I am obliged to find that the learned Magistrate did fall into error and it is necessary for the matter to be determined afresh.

7. Whilst Ms Keys, who appeared for the appellant, challenged Constable Moroney's assertion of having been able to "see" that the appellant had not been wearing his seat belt, it was common ground that this statement reflected an inference drawn from his inability to see any belt passing across the appellant's chest or shoulder and the fact that he had been able to see two belts hanging down vertically from the "B pillar" of the appellant's vehicle. Since there was otherwise no challenge to the credibility of his evidence, both counsel agreed that it would be appropriate for me to determine the matter by reference to the transcript of evidence rather than remitting it back to the Magistrates Court for further hearing. I accepted that it was appropriate to do so.

8. Any suggestion that the appellant had not had the belt running across his lap and duly fastened may be readily dismissed. The observations which understandably led Constable Moroney to infer that the appellant had not done so were equally consistent with the account which the appellant gave of the manner in which the belt had been adjusted. Furthermore, when it was put to him that the appellant had been wearing his seat belt across his lap, Constable Moroney conceded that this was possible. Hence, even if the evidence given by the appellant were to be wholly disregarded, it would be inescapable that the evidence of Sergeant Moroney was incapable of proving beyond reasonable doubt that appellant had not had the seat belt fastened in the manner claimed. Accordingly, it is necessary to determine whether even the use of the seat belt in that manner constituted the offence charged.

9. Rule 264 provides as follows:

1 The driver of a motor vehicle that is moving, or is stationary but not parked, must comply with this rule if the driver's seating position is fitted with a seat belt.

Offence Provision.

2 The driver must wear the seat belt properly adjusted and fastened unless the driver is:

(a) reversing the vehicle; or

(b) exempt from wearing a seat belt under rule 267.

10. Rule 267(3) provides as follows:

A person is exempt from wearing a seat belt if:

(a) the person (or, for a passenger, the driver of the vehicle in which the person is a passenger) is carrying a certificate, issued under another law of this jurisdiction, stating that the person is not required to wear a seat belt; and

(b) the person is complying with the conditions (if any) stated in the certificate.

11. Regulation 25 of the Roads Transport (Safety and Traffic Management) Regulations 2000 (ACT) provides that for the purpose of this rule a certificate is issued under a law of this jurisdiction if the certificate is signed by a doctor and certifies that the person cannot wear a seat belt for medical reasons or that, because of his or her size, build or any other physical characteristic, the person cannot safely drive a vehicle while wearing a seat belt.

12. On behalf of the appellant it was argued that the requirement that the seat belt be "properly adjusted" plainly meant that it should be adjusted to provide the best possible protection for the person in question. In most cases, of course, that would require that a lap sash belt be adjusted so that one portion would pass across the person's chest whilst another portion passed across his or her lap. However, there are many circumstances in which such an arrangement would be inappropriate. Obvious examples would include people with chest or neck injuries, women in an advanced state of pregnancy and young children in baby capsules or other forms of restraint anchored to the seat of the car by an appropriately adjusted lap sash seat belt. In the present case, a doctor had certified that, because of the appellant's medical condition, he was unable to wear the seat belt across his chest. Hence, adjustment in a manner that would provide the maximum protection possible involved securing it across his lap. It was not disputed that the appellant suffered from the medical condition referred to in the certificates or that it effectively excluded the use of the seat belt in the normal "lap/sash" manner. Nor was it suggested that the method adopted would not have at least restrained the forward movement of his hips in the event of a collision. The belt had, in effect, been adjusted to operate as a lap belt because that configuration provided the best protection possible for a person with the appellant's physical limitations. In these circumstances it was "properly adjusted" to meet the needs of the appellant.

13. On the respondent's behalf it was argued that the phrase "properly adjusted" necessarily required that a lap sash belt be adjusted so that the sash portion would pass across the chest of the occupant whilst the lap portion passed across his or her lap. If this proved to be inappropriate because of the person's medical certificate, he or she could seek exemption from the requirement by obtaining and carrying an appropriate certificate. The appellant had, in fact, obtained such a certificate but had apparently lost it and, since he had not been carrying it when stopped by Constable Moroney, the provisions of rule 267(3) did not apply and the offence had been proven.

14. This argument seemed to presuppose that the requirement that a seat belt be "properly adjusted" should be interpreted to mean that it must be adjusted in a manner that would be proper for a normal person because a person unable to use a belt in that manner could seek an exemption. However, the requirement that a seat belt be "properly adjusted" was, in my opinion, intended to ensure that it was adjusted in a manner appropriate to the size, shape and physical condition of the person wearing it. When a person is unable to have a portion of the belt across his or her chest, a proper adjustment will be that configuration capable of providing the most effective protection consistent with the person's condition. The relevant provision is, after all, concerned with ensuring the safety of drivers and passengers and there is, no conceivable justification for a construction that would require compliance with a practice suitable for normal people even when it might actually create an unnecessary risk of serious injury.

15. Rule 267(3) appears to be concerned with exemptions from wearing seat belts rather than with the manner in which those seat belts must be adjusted. In the present case, the appellant had apparently been entitled to such an exemption before his condition improved to the point where he could wear a seat belt across his lap though not across his chest. Furthermore, even if the language of the rule were amenable to a more broad construction, the possibility that people might be able to obtain exemption from the application of rule 264 would not, of itself, justify interpreting a rule involving a penal provision in a more expansive manner than that required by its terms. More particularly, there would still be no reason to suppose that the requirement that seat belts be "properly adjusted" should be construed without particular regard to the physical characteristics of those concerned.

16. For these reasons, I am unable to accept the arguments advanced on the respondent's behalf.

17. I might mention that even if I had accepted the respondent's submissions concerning the effect of rules 264 and 267(3) I would have been obliged to find that the manner in which the accused had fastened the seat belt was in accordance with the medical certificate provided to him and that he had committed a technical offence only by reason of not having that certificate with him at the time his vehicle was stopped by Constable Moroney. In that event, unless there had been something in his previous driving record to suggest the need for some real penalty, I would have considered it appropriate to find the offence proven but dismiss the charge under s 402 of the Crimes Act 1900. However, that does not arise.

18. I was also informed that several similar charges had been laid against the appellant, though it was not clear whether it was alleged that he had again failed to carry the medical certificate or why the authorities would have persisted in pursuing such charges once they knew that he had a medical condition that made it inappropriate and perhaps dangerous for him to wear a seatbelt in the manner said to be required. In any event, those charges are the subject of separate proceedings in the Magistrates Court.

19. The evidence in the present case does not, in my opinion, establish to the requisite standard that the appellant was not wearing a seat belt which was properly adjusted and fastened. Hence, the appeal must be upheld, the convictions and orders set aside and a verdict of acquittal entered.

20. I will hear counsel as to costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Crispin.

Associate:

Date: 6 December 2002

Counsel for the appellant: Ms J Keys

Solicitor for the appellant: Michael Bartlett Solicitor

Counsel for the respondent: Mr D Morters

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 2 December 2002

Date of judgment: 6 December 2002