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Supreme Court 5 June 2008

Matheson v Director of Public Prosecutions (NSW)

[2008] NSWSC 550

Also reported as (2008) 185 A Crim R 83
Traffic & driving
ROAD TRANSPORT RELATED AREA MEANING OF "AUXILIARY" FINDING OPEN TO MAGISTRATE NO ERROR OF LAW APPEAL AGAINST CONVICTION DISMISSED

Citation: Matheson v Director of Public Prosecutions (NSW) [2008] NSWSC 550
Court: Supreme Court of New South Wales, Common Law Division
Date: 5 June 2008
Judge(s): Johnson J

Background

A woman from Nyngan purchased an electric-assisted bicycle, known as an "Eazyride KHS" model, after being told at an agricultural expo and by Roads and Traffic Authority personnel that it required neither registration nor a motorcycle licence. The vehicle weighed around 70 kilograms (including two batteries), had an 18-inch wheel diameter, and could travel at 22 to 32 kilometres per hour under electric power alone. It was fitted with foot pedals, but the appellant had not been observed using them during the incident that led to her prosecution.

Police stopped the appellant riding the vehicle on a street in Nyngan. She was travelling at approximately 30 kilometres per hour under electric power without using the pedals. The vehicle had no registration plate. Police charged her with using an unregistered registrable motor vehicle contrary to section 18(1) of the Road Transport (Vehicle Registration) Act 1997.

The key question at the Local Court was whether the vehicle fell within an exemption for a "pedal cycle to which was attached auxiliary propulsion motor or motors having combined maximum power output not exceeding 200 watts." The Magistrate convicted the appellant, fined her $500 plus $70 costs, and declined to consider a dismissal of the charge without conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999, in part because the appellant had pleaded not guilty. The appellant appealed to the Supreme Court on questions of law alone.

  • Whether the vehicle qualified for the registration exemption as a "pedal cycle" with an "auxiliary" motor not exceeding 200 watts, or whether it was properly characterised as a motor vehicle with pedals as a secondary feature
  • Whether the Magistrate's interpretation and application of the word "auxiliary" in the exemption provision involved an error of law
  • Whether the Magistrate erred in law by treating the appellant's plea of not guilty as a reason to exclude consideration of a section 10 dismissal without conviction

Decision

On the conviction appeal, the Supreme Court found no error of law in the Magistrate's conclusion. The Magistrate had found, on the evidence, that the vehicle was primarily a motor cycle to which foot pedals had been added as a secondary or backup means of propulsion. The word "auxiliary" denotes something that assists or supplements a primary function. On the facts presented, including that the appellant used the pedals only when the batteries ran low and that the vehicle closely resembled a petrol-powered scooter, it was open to the Magistrate to find that the electric motor was the primary means of propulsion and the pedals were the auxiliary element, rather than the reverse.

The Supreme Court confirmed that identifying an error of law on a statutory interpretation question requires more than demonstrating that the Magistrate's conclusion was one of several available readings. Because the Magistrate's characterisation of the vehicle was a factual finding that a reasonable tribunal could reach on the evidence, no reviewable error of law was established. The conviction appeal was dismissed.

On the sentence appeal, the Supreme Court found a clear error of law. The Magistrate had effectively excluded consideration of a section 10 order on the basis that the appellant had pleaded not guilty. Section 10 of the Crimes (Sentencing Procedure) Act 1999 permits a court, after finding an offence proved, to dismiss the charge without recording a conviction. A plea of not guilty is not a ground for withholding consideration of that option. Treating it as such constituted an error going to the exercise of the sentencing discretion.

The Supreme Court declined to remit the matter to the Local Court, noting that both parties agreed the appropriate outcome, once the error was identified, was a section 10 dismissal. Taking into account the extenuating circumstances, including that the appellant had acted under a genuine mistaken belief that the vehicle was lawfully rideable without registration, the Court substituted a section 10(1)(a) order dismissing the charge without proceeding to conviction.

Orders Made

  • The appeal against conviction is dismissed.
  • The appeal against sentence is allowed; the sentence, fine, and costs order imposed in the Nyngan Local Court are quashed.
  • In lieu of the original sentence, an order is made under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 that, without proceeding to conviction, the charge under section 18(1) of the Road Transport (Vehicle Registration) Act 1997 is dismissed.
  • No order as to costs.

Key Takeaways

  • The characterisation of a vehicle as a "pedal cycle" with an "auxiliary" motor turns on which mode of propulsion is primary in fact, not merely on what features the vehicle possesses. A Magistrate's factual finding on this question will survive appeal on a question of law if it was reasonably open on the evidence.
  • Where the electric motor is the dominant means of propulsion and the pedals function only as a backup, the vehicle does not meet the regulatory exemption for a pedal cycle with an auxiliary motor, even if the motor's power output falls within the prescribed wattage limit.
  • A plea of not guilty is not a valid reason to decline to consider a section 10 dismissal without conviction under the Crimes (Sentencing Procedure) Act 1999. Treating a not guilty plea as a disqualifying factor amounts to an error of law in the exercise of sentencing discretion.
  • The Supreme Court confirmed its power under section 55(2)(b) of the Crimes (Appeal and Review) Act 2001 to vary a sentence directly rather than remit the matter, where the corrected outcome is sufficiently clear and remittal would waste judicial resources.
  • Acting under a genuine, albeit mistaken, belief about the lawfulness of conduct can constitute an extenuating circumstance relevant to the exercise of the section 10 discretion.

Legislation and Cases Referenced

Legislation
- Road Transport (Vehicle Registration) Act 1997 (NSW), s 18(1)
- Road Transport (Vehicle Registration) Regulation 1998 (NSW), Schedule 1, Clause 15
- Road Transport (Vehicle Registration) Regulation 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 55
- Road Transport (General) Act 2005 (NSW)

Cases
- Proudman v Dayman (1941) 67 CLR 536
- Von Lieven v Stewart (1990) 21 NSWLR 52
- Ostrowski v Palmer [2004] 218 CLR 493
- Australian Gas Light Company v Valuer-General (1940) 40 SR(NSW) 126
- Beckwith v The Queen (1976) 135 CLR 569
- Acuthan v Coates (1986) 6 NSWLR 472
- Director of Public Prosecutions v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402
- Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
- Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
- Siganto v The Queen (1998) 194 CLR 656
- R v Thomson and Houlton (2000) 49 NSWLR 383