Keane v Uhe [2004] ACTSC 57 (1 July 2004)

Last Updated: 16 September 2004

KEANE v UHE

[2004] ACTSC 57 (1 July 2004)

CRIMINAL LAW - Appeal - appeal from conviction in Magistrate's Court - s 19(1) Road Transport (Alcohol and Drugs) Act 1977 - charge of drink driving - whether offence is complete once appellant exceeds prescribed concentration of intoxicating liquor and starts, or attempts to start, motor vehicle - whether defence in s 21 applies - whether appellant was the `driver' of a motor vehicle - whether appellant was `in charge of' a motor vehicle - sections should be purposively interpreted - accused discovered asleep over wheel of motor vehicle in car park with engine started and air conditioner on - defence applies - appeal upheld.

CRIMINAL LAW - Appeal - appeal from conviction in Magistrate's Court - s 18(1) Road Transport (Vehicle Registration) Act 1999 - charge of driving unregistered registrable vehicle - whether entering vehicle, starting engine to utilise heating system and falling asleep constitutes "use" of a motor vehicle - whether constitutes "driving" a motor vehicle for purposes of exception in reg 22 Road Transport (Vehicle Registration) Regulations 2000 - appeal dismissed.

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 14(1)(c), 19(1), 19(3), 21

Road Transport (Vehicle Registration) Act 1999 (ACT) s 18(1)

Road Traffic (Vehicle Registration) Regulations 2000, reg 22

Reynolds v Todorovski (ACTSC; 2 April 1990; unreported).

NRMA Insurance Ltd v New South Wales Grain Corporation (1995) 22 MVR 317

Commercial Building Centre Pty Ltd v NRMA Insurance Ltd [2004] ACTCA3

The Government Insurance Office of NSW v King [1960] HCA 60; (1960) 104 CLR 93

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 8 of 2004

Judge: Higgins CJ

Supreme Court of the ACT

Date: 1 July 2004

IN THE SUPREME COURT OF THE )

) No. SCA 8 of 2004

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: LAURIE PHILIP KEANE

Appellant

AND: CAROLYN PATRICIA UHE

Respondent

ORDER

Judge: Higgins CJ

Date: 1 July 2004

Place: Canberra

THE COURT ORDERS THAT:

1. Appeal against conviction for breach of s 19(1) Road Transport (Alcohol and Drugs) Act 1977 be upheld, and conviction and penalty be set aside.

2. Appeal against conviction for breach of s 18(1) Road Transport (Vehicle Registration) Act 1999 be dismissed.

1. On 6 February 2004, the appellant was convicted by Magistrate Lalor in the ACT Magistrates Court of two offences.

2. First, that he contravened s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (`RT (A & D) Act') in that he, in the ACT, on 6 July 2003, did drive a motor vehicle on a public street with level 4 alcohol in his blood. Second, that he contravened s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT) (`RT (VR) Act') in that he, in the ACT, on 6 July 2003, on a road, did use an unregistered registrable vehicle.

3. In respect of the first matter he was fined $500 plus $53 court costs and $50 levy and was disqualified from holding a driver's licence for six months. In the second matter, he was fined $100 plus $53 court costs and the $50 levy.

4. The facts, as proved and found by the learned Magistrate were not in dispute.

THE FACTS

5. At about 4.55 am on Sunday 6 July 2003, the appellant's vehicle was noticed by police, including the respondent, a detective sergeant, parked in the long stay carpark in Bunda Street, Canberra City opposite the Target Store. The engine was running and the appellant was slumped over the steering wheel. The appellant was roused by the respondent. When he wound down his window there was a strong odour of intoxicating liquor. The appellant was clearly grossly intoxicated.

6. The appellant, nevertheless, made a statement to police. He asserted that he had merely accessed his vehicle to keep warm. He stated that he had no intention of driving or attempting to drive the vehicle. It was also noted by police that the registration of the vehicle had expired on 16 June 2003.

7. The appellant returned a breath test result of 0.210 - level 4 category.

8. The respondent conceded that, though the appellant's vehicle had the engine running, the lights were not illuminated. The night was cold.

9. The appellant gave evidence. Much of it related to his attempts to have his vehicle re-registered. The failure to do so seemed to be a result of inability to pay for necessary repairs. He denied that he had, after consuming intoxicating liquor that evening, driven or attempted to drive his vehicle; he was waiting for friends to drive him home. He was tired and cold and, hence, activated the engine to cause the heater to operate. He was in the front seat because the vehicle was a small coupè and there was no room in the back to sleep.

10. The prosecutor did not seriously challenge the appellant's evidence concerning his intention. Indeed, not only could that hypothesis not be excluded, it was, in the circumstances, open to conclude that it was, on the balance of probabilities, the truth of the matter.

11. Magistrate Lalor convicted the appellant on both charges.

12. As to the drink driving offence, his Worship found that under the relevant legislative provisions, the offence was complete once the appellant, having consumed enough intoxicating liquor to exceed the prescribed concentration, started or attempted to start a motor vehicle on a public street or in a public place. The defence, provided by s 21 RT (A & D) Act, that he had not intended to put the vehicle in motion, was, his Worship held, inapplicable.

13. On 9 February 2004, a Notice of Appeal was duly filed challenging each conviction. There is no challenge to the quantum of the penalties imposed.

14. The appellant was alleged to have contravened s 19(1) of the RT (A & D) Act. That provides:

`(1) A person who -

(a) has been the driver of a motor vehicle on a public street or in a public place; and

(b) has, within the relevant period, a concentration of alcohol in his or her blood equal to or more than the prescribed concentration;

commits an offence punishable, on conviction, by a penalty ascertained in accordance with section 26.'

15. The `relevant period' is defined by s 19(3). It means, relevantly:

`... the period beginning when the person ceased to be the driver of the vehicle and ending at the latest time when -

(a) a breath analysis of the person may be carried out in accordance with this Act.'

16. The `relevant period' in respect of the appellant was, by virtue of s 14(1)(c), two hours. The breath test was carried out at 0552 hours on 6 July 2003.

17. The appellant had told the respondent that he had ceased drinking about half an hour before he spoke to her. Presumably, he had proceeded then to his vehicle, started it and fell asleep.

18. It was not challenged that the starting of the vehicle occurred within two hours before 0552 hours on 6 July 2003; that is, within the `relevant period'.

19. However, Ms Keys, counsel for the appellant, contended that on the proper construction of s 21 of the RT (A & D) Act it had been open to the appellant to raise the defence provided therein and that his Worship was in error in holding to the contrary.

20. One central question was the definition of `driver'. The appellant, understandably, had protested to Sergeant Uhe that he had not, relevantly, been the `driver' of his vehicle.

21. The Dictionary (s 3 (RT (A & D) Act) defines `drive a motor vehicle' to include:

`(a) start or attempt to start the engine of the vehicle ....

...

(c) be in, and in charge of, the vehicle ....'

22. The person who has done so is a `driver'. It followed that, at least when he started the motor vehicle, the appellant became `the driver' of the vehicle as so defined. It is not necessary to determine whether, by being asleep in the vehicle with the engine running but otherwise not exercising any control over the vehicle, the appellant was also `in charge' of it. He is, by definition, a `driver' irrespective of that.

23. Section 21 RT (A & D) Act provides:

`If a person charged with an offence against section 19 was the driver of the motor vehicle only for the reason that he or she was in, and in charge of, a motor vehicle on a public street in a public place, it is a defence if the person charged establishes that -

(a) he or she had not started, or attempted to start, the motor vehicle and had not put, or attempted to put, the motor vehicle in motion; and

(b) he or she did not intend to drive the motor vehicle until a time when the concentration of alcohol in his or her blood would be less than a concentration equal to the prescribed concentration.'

24. The appellant was a `driver', however, by reason only that he had started the engine of the vehicle. He was also `a driver' if, in addition to being in the vehicle, he could be said to be `in charge' of it.

25. Thus a person may be not a driver if they have not started or attempted to start a motor vehicle yet be a driver if in, and in charge of, a motor vehicle. Despite the use of `and' between the heads of the definition, that word is clearly used disjunctively as well as conjunctively.

26. The essence of the section is that a person otherwise `a driver' is entitled to raise the defence provided for if, not only was he or she merely in and in charge of the vehicle, but also had made no attempt to put the vehicle in motion and did not intend to do so until no longer adversely affected by intoxicating liquor. Starting or otherwise attempting to start the vehicle, in other words, will not disqualify a driver from raising the defence but, obviously, putting the vehicle in motion (or attempting so to do) not only renders a person a driver but excludes the defence provided for by s 21.

27. The section is not without ambiguity but, in my view, it should be purposively interpreted. The onus of proof of lack of intent to drive otherwise than by being in the vehicle is on the defendant thus any unconvincing assertion of innocence will usually be met with dismissive scepticism.

28. I note that this interpretation of s 21 also commended itself to Foster J in Reynolds v Todorovski (ACTSC; 2 April 1990; unreported).

29. His Honour stated:

The defence is available only when the sole basis of prosecution is that the defendant was in or in charge of the motor vehicle. It then devolves upon him to establish the bases of exculpation set out in paragraphs (a) and (b) ....

However, the reference to starting the engine is, for some reason, not adopted in sub-section (a). Reference is made only to starting the motor vehicle. Moreover, the two matters find themselves bound together in the same sub-paragraph. Obviously, the starting of the motor vehicle is not a totally unconfined concept. It must have some relevance to the object sought to be achieved by the creation of the offence.

A starting of the motor vehicle, or its engine, at a point of time and for a purpose utterly unrelated to its being used as a vehicle, i.e. a conveyance on a public street, must, in my view fall outside section 19. Conversely, the establishing that (a) `starting' was similarly, utterly unrelated would go to the entitlement to the defence under section 21.'

30. In the present case, if the appellant is to be believed, his purpose in starting the engine of the motor vehicle had nothing to do with putting or attempting to put the vehicle in motion. It, therefore, follows that his Worship was led into error in assuming that the appellant was disqualified from reliance on s 21 if he had started or attempted to start the engine of his motor vehicle. Of course, by doing so, he subjected himself to a finding of guilt unless he could satisfy the court that the starting of the vehicle was not an attempt to put the vehicle in motion or evidence of intent to do so.

31. It follows that the appeal against conviction for the first offence must be upheld and the conviction and penalty set aside.

USE UNREGISTERED REGISTRABLE MOTOR VEHICLE

32. There was no doubt that the vehicle bearing plates NSW LOZ-222 was unregistered as at 6 July 2003 when the respondent approached it.

33. The registration had expired on 16 June 2003. The appellant had taken it to a service station on 10 June 2003. There was some work done on it. On 13 June 2003 the appellant picked it up. There was a `hefty bill'. It was about $900. There was a balance payable of $280 still to be paid. Relevant faults, preventing re-registration, still existed.

34. However, the appellant kept using the vehicle, intending, he said, to return to the service station, which he did not do till 27 June 2003, to obtain the pink slip needed for registration. The vehicle did not, however, pass inspection until 9 July 2003.

35. The provision applicable is s 18(1) of the RT (VR) Act. That provides:

`(1) A person must not use an unregistered registrable vehicle, or a vehicle with suspended registration, on a road or road related area.'

36. Sub-paragraph (d) of the definition of `road related area' includes:

`an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles.'

37. The area in question was clearly a `parking' area within the meaning of that definition.

38. The question is whether, on 6 July 2003, the appellant `used' the vehicle as alleged.

39. The vehicle was clearly driven to and on the carpark by the appellant on 5 July 2003. It was not then registered. It had not been registered since 16 June 2003. It was a `registrable vehicle' as defined by the relevant Dictionary (RT (VR) Act).

40. On 6 July 2003, the appellant entered the vehicle started it and went to sleep in it, utilising the heating system to warm himself. If that was `using' the vehicle, the offence had clearly been committed, subject to the exemption provided by reg 22 of the Road Traffic (Vehicle Registration) Regulations 2000. It is open to question whether `using' the vehicle can be constituted by the acts committed by the appellant on 6 July 2003. He was not charged with using it on 5 July 2003. The vehicle was not put in motion. `Use' is defined to include `drive, park or stop the vehicle'. To `drive' under the RT (VR) Act includes `(a) be in control of the steering, movement or propulsion of the vehicle'. It is a different definition from that included in the RT (A & D) Act. The appellant did none of those things on 6 July 2003. He had parked and left the vehicle, it seems clear, on 5 July 2003. `Drive' is not defined so as artificially to include starting the vehicle as it is under the RT (A & D) Act. (They have different Dictionaries). It is arguable, I suppose that to `be in control of the steering, movement or propulsion of the vehicle' could include a parked vehicle, the engine of which has been started but I think that, if that was intended, the definition in the RT (A & D) Act would have been utilised.

41. Did the appellant, nevertheless, `use' the vehicle by starting the engine and sleeping in it for the purpose of keeping warm till his friends arrived? The definition of `use' in the RT (VR) Act Dictionary is inclusive, not stipulative. However, the purpose of the regulation has to be borne in mind. That is, vehicles that are unregistered should not be driven or otherwise put in motion on a public street or related area, particularly if the `use' of the vehicle could give rise to liability under the compulsory third party insurance policy.

42. His Worship considered only whether, assuming that the appellant had `used' the vehicle, reg 22 applied. That states:

`(1) The registration provisions do not apply to a registrable vehicle while it is being driven, for the purpose of obtaining registration of the vehicle, by the most direct or convenient route ...

(a) to the nearest convenient designated place.

43. It is clear that on 6 July 2003 the appellant did not `drive' the vehicle within the meaning of the RT (VR) Act or Regulations nor within the usual meaning of that term. He was `in and in charge of' the vehicle but that is not the ordinary meaning of `driving' it. To control it (or attempt to) whilst it is in motion is to drive it. To `direct the course of' the vehicle is the ordinary meaning. It is clear that reg 22 would not have provided any exemption to the appellant for having used the vehicle on 5 July 2003. He was not, on that date, driving it for the purpose referred to in reg 22.

44. Thus had the appellant been charged with a breach of s 18(1) of the RT (VR) Act occurring on 5 July 2003, he would have had no defence to that charge.

45. However, he was not so charged.

46. The term `use' is one of wide import. It was held that unloading a grain elevator from the back of a truck was `using' the motor vehicle - see NRMA Insurance Ltd v New South Wales Grain Corporation (1995) 22 MVR 317.

47. However, more recently, in Commercial Building Centre Pty Ltd v NRMA Insurance Ltd [2004] ACTCA3, it was held (per Crispin P, Cooper and Weinberg JJ) that to be part of a `chain' of persons loading a truck was not a use of the motor vehicle.

48. Even to start the engine of a motor vehicle is not necessarily to `use' it. In The Government Insurance Office of NSW v King [1960] HCA 60; (1960) 104 CLR 93, Menzies J observed, at 99:

`I am not in doubt that to start the engine of a motor vehicle preparatory to driving off is part of the use of a motor vehicle itself, nor do I doubt that to drive a motor vehicle to test whether repairs have been effective is to use the motor vehicle. I have, however, found some difficulty in determining what is the central question here, ie., whether the starting of an engine of a motor vehicle in the course of repairing it or to test the efficacy of repairs made can properly be said to amount to a use of a motor vehicle itself.'

49. None of the decided cases answers the question as to whether occupying and starting the vehicle for the purpose of warming oneself while sleeping in the motor vehicle on a cold night is so connected with the usual operation of it as a motor vehicle as to be a `use' of the motor vehicle as such.

50. Clearly swinging a door open whilst alighting from it after parking it would be incidental to the ordinary use of the motor vehicle so as to be a `use' of it. Thus a passing third party injured by a negligently opened door would be injured by the `use' of the vehicle and hence, within the scope of the compulsory third part insurance policy.

51. Whilst acknowledging that the same accident caused by the sleeping owner being roused by, say, a police officer, is not so clearly arising out of the `use' of the motor vehicle, it seems to me that given the correlation between registration and insurance the scope of the word `use' in each case should be correlative. The use of the vehicle to `sleep it off', particularly when the engine has been activated seems to me to be a `use' of the vehicle though not a `driving' of it.

52. It follows that the appellant was rightly convicted of using an unregistered registrable vehicle and the appeal in relation to that matter is dismissed.

53. I will hear the parties as to consequential orders and costs.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 1 July 2004

Counsel for the Appellant: Ms L P Keys

Solicitor for the Appellant: -

Counsel for the Respondent Mr C Todd

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 3 May 2004

Date of judgment: 1 July 2004