Citation: R v Chan [2011] NSWDC 227
Court: District Court of New South Wales
Date: 18 October 2011
Judge: Berman SC DCJ
Background
The appellant was a taxi driver whose vehicle was involved in a crash when a passenger opened a rear door into an oncoming bus. The bus driver asked the appellant for his particulars at the scene. The appellant declined to provide them, preferring to wait until police arrived. The bus driver, who had passengers to attend to, eventually left without receiving the appellant's details.
The appellant was charged with breaching Road Rule 287, which sets out the obligations of a driver involved in a crash. He was convicted in the court below and appealed to the District Court on a question of law, not on the facts.
Legal Issues
- Whether Road Rule 287(3), which obliges a driver to provide particulars to a police officer, operates as an alternative to the obligation under Rule 287(2) to provide particulars to the other driver at the scene.
- Whether a driver can lawfully decline to give particulars to the other driver at the scene, provided the driver later gives those particulars to police.
Decision
The appellant's counsel argued that subrule (3) offered drivers a genuine choice: comply with subrule (2) by providing particulars to the other driver, or comply with subrule (3) by providing them to police instead. The argument was that Parliament could not have intended to criminalise a driver who, facing an aggressive or aggrieved person, chose the safer course of waiting for police.
Berman SC DCJ acknowledged some sympathy for the policy concern but held that the text of the rule controlled the outcome. The critical word in subrule (3) is "also." The court found that "also" means "in addition to," not "instead of." Reading the provision according to its ordinary meaning, subrule (3) imposes an additional obligation that arises where a driver has not, for whatever reason, been able to comply with subrule (2). It does not replace subrule (2).
The court noted that the words "for any reason" in subrule (3) are probably superfluous: they simply acknowledge that there may be reasons a driver could not comply with subrule (2) (for example, where the other driver left the scene without requesting particulars), but the obligation to provide particulars to police arises regardless. One of the established principles of statutory interpretation requires that effect be given to every word in a provision. Giving effect to "also" made it impossible to accept the appellant's construction.
The appeal was dismissed.
Orders Made
- The appeal against conviction was dismissed and the conviction was confirmed.
Key Takeaways
- Road Rule 287(2) and 287(3) impose cumulative obligations, not alternative ones: a driver involved in a crash must provide required particulars to the other driver at the scene and, where that has not occurred for any reason, must also provide them to police.
- The word "also" in subrule (3) carries its ordinary meaning of "in addition to," and a statutory interpretation that treated it as meaning "instead of" could not be sustained.
- In dismissing the appeal, the District Court reaffirmed the principle that courts must give effect to every word in a legislative provision when construing its meaning.
- Berman SC DCJ noted, without deciding, that a defence of necessity might warrant close examination in an extreme case (such as a driver facing an aggressive party), but that consideration did not arise on the facts here.
- Where statutory text produces consequences that may appear unintended or harsh, the court confirmed that addressing those consequences is a matter for Parliament, not the judiciary.
Legislation and Cases Referenced
Legislation:
- Road Rule 287 (NSW)
Cases cited:
None cited in the judgment.