Are you a Driver or simply pulled over and/or parked? : The Legal Definition

Wednesday , 11, November 2015 Leave a comment


I have seen quite a few people complaining about being charged with offences that allege they are driving, when at the time their vehicle was pulled over and/or parked and stationary.

According to the ROAD SAFETY ACT 1986 (Vic)[1] it says “drive includes to be in control of a vehicle.”

That is all that is said, so the Courts have interpreted this to mean it is Parliaments intent for the Courts to define it based on facts.

In order to constitute an offence the activity which is being performed by the defendant must fall within the ordinary meaning of the word “drive”[2].

The word “drives” is an ordinary English word in very common use. But it is a word of imprecise connotation. The Oxford Dictionary gives at least twenty-seven meanings of the verb[3]. The Shorter Oxford English Dictionary provides the operative definition for the verb “drive”: “to urge onward and direct the course of a vehicle…In its ordinary sense the word ‘driving’ would appear to involve the actual physical control over the operation and movement of the car”[4].

The answer to the question in any given case whether the defendant was “driving” a motor vehicle is largely a question of fact[5]

That to drive is not simply to control, and not simply to be in charge of a motor vehicle, and that there must be something further that the person to be charged does, which would bring him within the ordinary understanding of the meaning of the word “drive”[6]

The person behind the steering wheel must have control of the propulsion of the vehicle[7], without the power to urge the vehicle forwards or backwards, it cannot be said to be driving the vehicle in the relevant sense.

The intention of the defendant is irrelevant.  The question is of objective fact. Did you actually drive the car? No.

Control over the means of propulsion and movement of the vehicle are necessary ingredients of driving[8].. A person guiding a broken-down vehicle that is being towed[9] or pushed[10] for that matter does not drive a motor car[11].

There needs to be evidence as to the speed at which the car was travelling and evidence as to the terrain, that is, whether on the roadway[12].

There emerges, however, from a consideration of the authorities the view that before a person can be said to be driving a motor vehicle he must at least have some control over the movement and direction of the vehicle[13] and generally that he must have something to do with the propulsion[14].

The question whether a person in given circumstances is driving the car will often turn on the extent and degree to which the person was relying on the use of the driver’s controls[15]:

There is an obvious distinction between a vehicle which is caused to coast on a highway and one which is merely moved a metre or so for the purpose, for example, of getting it to the kerb or clear of the entrance to a house or for some other such purpose”[16].

Ultimately the question is largely one of fact and the courts have not attempted to give an exhaustive definition of the word “drives” but rather have said whether in the circumstances of the particular case the defendant was driving the vehicle within the ordinary meaning of the verb[17],[18].

Footnotes

[1] ROAD SAFETY ACT 1986 (Vic) s.3(1).

[2] Widgery L, in R v MacDonagh [1974] QB 448; [1974] 2 All ER 257 at [260].

[3] Pullin v Insurance Commissioner [1970] VicSC 62; [1971] VicRp 31; (1971) VR 263 at [pp4-6]

[4] Rowe v Hughes [1974] VicRp 7; (1974) VR 60 at 62

[5] Pullin v Insurance Commissioner [1970] VicSC 62; [1971] VicRp 31; (1971) VR 263

[6] McGrath v Cooper [1976] VicSC 75; [1976] VicRp 54; (1976) VR 535.

[7] Caughey v Spacek [1968] VicSC 73; [1968] VicRp 78; [1968] VR 600, followed.

[8] Caughey v Spacek [1968] VicSC 73; [1968] VicRp 78; (1968) VR 600; and Wallace v Major [1946] KB 473; (1946) 2 All ER 87, followed

[9] Wallace v Major (1946) 1 KB 473; [1946] 2 All ER 87 and Caughey v Spacek [1968] VicSC 73; [1968] VicRp 78; (1968) VR 600

[10] Tink v Francis [1983] VicRp 74; (1983) 2 VR 17

[11] Hughes v McFarlane

[12] Tink v Francis [1983] VicRp 74; (1983) 2 VR 17

[13] PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR- MEANING OF “DRIVE” v MacLeod (1969) SC 1)

[14] Cf. R v MacDonagh [1974] 2 All ER 257; (1974) QB 448 at p452.

[15] R v MacDonagh, ubi sup.

[16] Cooley v Lowe (1984) 1 MVR 45; [1984] TASRp12; [1984] Tas R 107 and Howe v Strickland [1984] TASRp 6; [1984] Tas R 36; (1984) 1 MVR 415 at 417).

[17] Tink v Francis [1983] VicRp 74; (1983) 2 VR 17 at [19]

[18] MEANING OF “DRIVE” by Patrick Street LL B, Dip Crim 19 March 2014



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