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Monday, 5 November 2012

Driving a motor vehicle

Last week I wrote about an unrepresented appellant who challenged a fundamental principle of sentencing in the County Court. While I've previously warned of the serious disadvantage that unrepresented litigants place themselves at, they do occasionally bring a fresh perspective to issues that normally get taken for granted. This doesn't always work out for the appellant but it does, at least, clarify the law for everyone else.

A classic example is the case of George Tsolacis and his challenges to his convictions for offences against s 59 of the Road Safety Act 1986. Tsolacis drove home from work in the early hours of 15 June 1991. As he parked his car and got out he was approached by the police informant, who had been following him. The policeman asked for Tsolacis' licence and details, which he refused to supply.

Winneke P [Hayne and Kenny JJA agreed] in Tsolacis v Kelly [1997] VSC 34, at 2:

On 24 September 1991 [Constable] Kelly laid information against the appellant charging him with two offences against s 59(1)(a) of the Road Safety Act 1986. Relevant the sub-section provides as follows:

"(1) The driver or person in charge of a motor vehicle on a highway has the
following duties-

(a) to stop the motor vehicle, produce for inspection his or her driver
licence document or permit document and state his or her name and
address if requested or signalled to do so by-

(i) a member of the police force ..."
Sub-section (2) of the same section prescribes the penalties for failure to comply with the relevant requests outlined in sub-s 1.

The extent of the powers reposed in police officers by this section is not made abundantly clear by its terms.

The appellant has consistently maintained that he was not in breach of the duty prescribed by the sub-section because, at the time when the request was made, he was not "the driver of a motor vehicle on a highway". It has been, for him, I might say, a protracted and expensive campaign.

After conviction in the Magistrates' Court, the appellant unsuccessfully pursued an appeal to the Supreme Court on the point, then to the Court of Appeal. Through the litigation the appellant insisted, with some persuasive force, that at the time that his licence and details were requested his journey had been completed, and so none of the obligations created by s 59 applied to him.

Winneke P [at 4]:

As His Honour noted, there is no definition in the Act of what persons are taken to be "the driver of the motor vehicle on a highway" for the purposes of raising the duties contemplated by s 59 or, for that matter, for the purposes of other sections in this Act giving rise to similar duties. (See, for example, s 46.) But any sensible construction of the words of the whole of s 59 must, in my view, lead to the conclusion that the "driver" contemplated by the section comprehends a person in the circumstances in which the evidence discloses the appellant to have been in this case."

(Section 46 has been repealed since this case was decided in 1997).

The wording of the legislation would make it seem plausible that the obligations under s 59 only apply while the driving is actually going on. But successive courts interpreted the legislation purposively. The obligations in s 59 apply at any time proximate to, and not remotely from, the driving.

Winneke P [at 4]:

In each case that will be a question of fact. If the narrow construction of the sub-section were to be accepted, the administration and execution of the purposes of the Act by police could be wholly frustrated simply by the driver stopping the vehicle, turning off the ignition and alighting. It is clear from the perusal of the whole of the Act that such a construction was not intended.

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