Shane Justin McEwen v R [2015] NSWDC 248

District Court New South Wales

Medium Neutral Citation: Shane Justin McEwen v R [2015] NSWDC 248 Hearing dates: 23 February 2015 Date of orders: 26 February 2015 Decision date: 26 February 2015 Jurisdiction: Criminal Before: Judge AC Scotting Decision: See paragraph [23] Catchwords: CRIMINAL LAW – appeal – conviction – driving offence – unrestrained passengers – findings of the magistrate – reasonable doubt - EVIDENCE – properly admitted evidence - maker of statement not available – credibility Legislation Cited: Crimes (Appeal and Review) Act 2001 Australian Road Rules 2008 Evidence Act 1995 Cases Cited: Gianoutsas v Glykis [2006] NSWCCA 137 Charara v R [2006] NSWCCA 244 Category: Principal judgment Parties: Shane Justin McEwen (Appellant) Regina (Respondent) Representation: Counsel:

Mr S Boland (Appellant)

Solicitors:

S Kavanagh, Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/90734

Judgment 1. Shane Justin McEwen (the appellant) appeals against the convictions entered by Ms Kennedy LCM on 12 September 2014 at the Downing Centre Local Court in relation to a breach of Clause 265(3) of the Australian Road Rules 2008 (the Road Rules) that involved the appellant being the driver of a motor vehicle with 3 unrestrained passengers in the back seat. The appellant was fined the sum of $979.00, which was the amount on the traffic infringement notice. 2. On the appeal, Mr Boland of Counsel appeared for the appellant and Mr George, solicitor, appeared for the Director of Public Prosecutions; the respondent in the proceedings. 3. The prosecution case can be summarised as follows. On 1 January 2014 the Police had set up a random breath testing station in the northbound lanes of Clark Road, Neutral Bay. The police officers used a police vehicle and orange witches hats to create a preclusion zone, where cars would be directed from lane two into lane one, in front of the police vehicle so that the drivers could be safely submitted to random breath testing. Senior Constable Smith then used a sign and a torch fitted with an orange opaque cover to direct drivers from lane two into the preclusion zone. 4. At about 8.15pm Senior Constable Smith signalled to the appellant to bring his vehicle into the preclusion zone. As the vehicle passed Senior Constable Smith he noticed that the rear nearside passenger was not wearing a seatbelt and he called out to the police officers who were performing random breath testing "seatbelt" as he pointed to the rear passenger area of the vehicle. Senior Constable Gaskell was waiting to breath test the appellant and when the appellant's vehicle came alongside of Senior Constable Gaskell, he noticed that none of the three rear passengers were wearing a seat belt. After performing the breath test and returning to the police vehicle, Senior Constable Gaskell issued the appellant with a traffic infringement notice. 5. The appellant's case can be summarised as follows. The appellant was travelling north on Clark Road, Neutral Bay in his vehicle, an M series Mercedes-Benz, with 4 passengers; being his wife Kathryn McEwen in the front passenger seat and 3 passengers in the back seat being; Ms Crabtree, Mr McIntyre and another male. The back seat passengers, the subject of the charge, were backpackers from the United Kingdom. The appellant's case was that his vehicle was directed by the first police officer into the preclusion zone and that it then came to a stop alongside a second police officer behind some other stationary vehicles. The appellant waited for a short time presumably whilst the drivers of the vehicles in front were being breath tested. At about this time the back seat passengers removed their seatbelts. The vehicle was then directed forward to a third police officer, Senior Constable Gaskell, who breath tested the appellant and then spoke to him about the three unrestrained passengers, ultimately issuing him with the traffic infringement notice.