Morey v Birch [2005] ACTSC 16 (17 February 2005)

Last Updated: 11 May 2005

STEVEN MOREY v JOHN ARTHUR BIRCH [2005] ACTSC 16

(17 FEBRUARY 2005)

EX TEMPORE JUDGMENT

Road Transport (General) Act 1999 (ACT), s 22, s 29, s 31

Australian Road Rule, 304

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 76 of 2004

Judge: Gray J

Supreme Court of the ACT

Date: 17 February 2005

IN THE SUPREME COURT OF THE )

) No. SCA 76 of 2004

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: STEVEN MOREY

Appellant

AND: JOHN ARTHUR BIRCH

Respondent

ORDER

Judge: Gray J

Date: 17 February 2005

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. On 22 October 2004 the appellant was convicted by a Magistrate on an information, as amended, that on 9 April 2004 he did not obey a direction of a police officer for the safe and efficient regulation of traffic. He was fined $50.00 with $54.00 court costs. He appeals to this court from that decision.

Matters giving rise to the charge

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, 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 the 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 passed him, he struck the roof of the vehicle. Constable Van De Kamp gave evidence that he 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 policemen 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.

The grounds of appeal

6. There are two grounds of appeal. The first, that the Magistrate "erred in concluding that the traffic infringement notice was properly issued", the second that the Magistrate "erred in finding the offence proven beyond reasonable doubt".

The traffic infringement notice point

7. On the face of it, the first ground of appeal would seem to have no relevance to the disposition of this matter. Although some issue was apparently taken as to the validity of the traffic infringement notice, as the Magistrate in effect observed in her reasons, the situation of the traffic infringement notice was overtaken by the issue of the summons on the information of the offence.

8. In my view, there is no bar to the issue of a summons for an offence simply because a traffic infringement notice has been served on a person. Section 22(2) of the Road Transport (General) Act 1999 (ACT) (the Act) provides in its relevant portions,

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; ...

It is compliance with the notice that discharges the liability of the person for the offence and requiring that the person must not be prosecuted for the offence (see s 29(2) of the Act).

9. The traffic infringement notice that was first issued in respect of this matter specified the offence as having occurred on 10 April 2004 and the time of the offence specified as 23:52 hours. As a result of the appellant disputing the notice, that notice was withdrawn and a second notice issued for 9 April 2004.

10. If, as contended by Ms Keys who appeared for the appellant, the second notice given in this matter was invalid, then there could not have been a valid infringement notice served and the appellant's liability to be prosecuted for the offence would be unaffected. That seems to be the clear effect of s 22(2)(b)(i) of the Act.

11. Although I can conceive that in some situations such a circumstance of the service of an invalid infringement notice could justify a stay of the proceedings to enable a person to take the benefit of a valid infringement notice, no stay was sought here. I am quite unable to see how any asserted invalidity of the notice bars the institution of the proceedings in this matter.

12. Ms Keys submitted that if the traffic infringement notice is withdrawn, there is no power to issue the "second TIN" and that such a notice is accordingly invalid. In my view, that argument is quite misconceived having regard to the provisions of s 22(2)(c) of the Act which envisage the service of more than one infringement notice in respect of an offence. The only impediment to a prosecution proceeding when an infringement or a reminder notice has been given, is that provided in s 29 of the Act. That section operates only if the infringement notice has been served, the person has paid the infringement notice penalty, and when the payment was made, the infringement notice had not been withdrawn and no information for the offence had been laid (see s 29(1) of the Act). Even that provision is subject to the administering authority not serving a notice withdrawing the infringement notice; and that may take place even after the infringement penalty has been paid (see s 31 of the Act).

13. In the present case, the appellant did not pay the penalty and in fact he disputed both notices. For present purposes, it is enough to say that in the circumstances of this case, no bar has been shown to the prosecution proceeding.

Whether the charge was proved

14. The second ground of appeal is expressed with such generality that in itself it would merit striking out. However, the appellant's written submissions take three points. None of which are related to the question of whether the charge has been proved beyond reasonable doubt but rather whether the charge has been made out at all.

15. Australian Road Rule 304(1) states:

A person must obey any reasonable direction for the safe and efficient regulation of traffic given to the person by a police officer or authorised person, whether or not the person may contravene another provision of the Australian Road Rules by obeying the direction.

16. It is firstly said that the duties being performed by the police officers on this occasion can be described as "random breath testing and traffic enforcement duties", a description which is referrable to a statement made by Constable Van De Kamp.

17. It is also said that the direction in this context was to merely stop the drivers of vehicles for random breath testing. However, the characterisation of that direction is taken from a response to the issue of the first traffic infringement notice. It does not affect what was the true position at the time of the direction being given.

18. It is the appellant's submission that the conduct of "random breath testing and traffic enforcement duties" is a separate and distinct function from "the safe and efficient regulation of traffic". Whether or not that is so, the carrying out of the first function of random breath testing may well involve directions being given for the safe and efficient regulation of traffic. I do not see why both functions are not capable of being carried out at the same time. I do not regard the point that they may be distinct as having any substance when they may be carried out together.

19. Next, it is said that the direction given was "ambiguous" and "not clearly a direction to stop". As my recitation of the facts shows (which was substantially taken from the appellant's written submissions), the direction given by the officer pointing his torch and directing the beam to his right hand side was a clear and unambiguous direction for the driver to follow in the direction that the light pointed out.

20. This was, in effect, the Magistrate's finding. In the circumstances, there is nothing at all that has been put to me to suggest that it was not a (ordinary) reasonable direction capable of being apprehended by the appellant.

21. The appellant did not comply with that direction and that is what the Magistrate found.

22. Finally, it is said that the appellant failed to obey a direction to stop as the appellant's written submissions put it,

... because he did, in fact, stop at the scene of the random breath testing when he returned to the intersection of Leverrier Crescent and Tucker Street after receiving a verbal direction from another police officer.

23. As I have explained, the direction was not just a direction to stop but a direction to pull over in a particular direction. It is this that the appellant did not obey. In any event, a submission that compliance with a direction to stop is satisfied by the subsequent return of the appellant to the scene because at a much later time he is directed to do so by another police officer is simply unsustainable.

Conclusion

24. For these reasons I dismiss the appeal.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 11 March 2005

Counsel for the appellant: Ms J Keys

Solicitor for the appellant: Mr S Morey, for himself

Counsel for the respondent: Mr J Lundy

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 17 February 2005

Date of judgment: 17 February 2005