Google

Thursday, 23 April 2009

In connection with the driving of a motor vehicle

Section 28(1)(b) of the Road Safety Act 1986 provides a discretionary power for a court to suspend or cancel a licence on conviction or finding of guilt for an offence against that Act or for "any other offence in connection with the driving of a motor vehicle." The meaning and scope of this phrase has frequently been the subject of legal argument.

There has been a long-standing tension between the decision of Nathan J in Rochow v Pupavac [1989] VR 73, which suggests the provision is one of wide application, and other cases such as Murdoch v Simmons [1971] VR 887 and Crammer v McDougall (1995) 21 MVR 363, which define a stricter test. On a number of occasions the Supreme Court has declined to resolve the question, though recognising the eventual need to either reject or reconcile the two interpretations: R v Lefebure [2000] VSCA 79, and also more recently in the context of the confiscation of assets: DPP v Selcuk [2008] VSC 37.

In R v Novakovic (2007) 17 VR 21, JA Nettle (Ashley and Redlich JJA agreeing) revisited the issue and expanded on his earlier comments in Buckley v DPP (Unreported, Supreme Court of Victoria, 4 August 1994). His Honour clarified the scope of the phrase in connection with a motor vehicle in a number of important respects. The following points emerge from the judgment [57 – 67]:

  • there must be a substantial connection between the offence and the driving of the motor vehicle
  • a connection that is merely 'not remote and fanciful' as discussed in Rochow v Pupavic is insufficient to meet that test
  • each case must turn on its particular facts
  • there need not be a connection between the offence and the manner in which the vehicle is driven (ie. there is no requirement to demonstrate bad, dangerous or irresponsible use of the motor vehicle for s 28(1)(b) Road Safety Act to be invoked)
  • licence disqualification contains a punitive element. The need to punish the offender appropriately and manifest the dissatisfaction of the community with the offence must be weighed against not unduly hampering the person’s prospects for rehabilitation, including finding employment: per Tadgell JA in R v Lefebure [2000] VSCA 79 at [8]


Rochow v Pupavac has been approved interstate, where a broader interpretation is favoured (the NSW and Queensland jurisdictions were referred to by Hollingworth J in Selcuk at 27; see also Macrossan CJ's comments in The Queen v Nhu Ly [1995] QCA 139 for another example). But the Victorian Court of Appeal's narrower interpretation in Novakovic probably represents the current position in this state.

No comments: