Moroney v Wojcicka [2003] ACTCA 15

[2003] ACTCA 15

Court of Appeal (ACT)|2003-08-15

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Court of Appeal (ACT)

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2003-08-15

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Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

BEVAN PAUL MORONEY v GEORGE JOHN WOJCICKA

[2003] ACTCA 15 (15 August 2003)

CRIMINAL LAW – Double jeopardy – Rule against – Whether displaced by statute – appeal by crown against quashing of conviction and dismissal of charge on defendant’s appeal from conviction – Supreme Court Act 1933 (ACT), ss 37E and O

CRIMINAL LAW – Charge of failing to wear a seat belt “properly adjusted and fastened” –Australian Road Rules, r 264 – Defendant convicted in Magistrates Court – Appeal against conviction – Appeal allowed and charge dismissed – Further appeal by informant against dismissal of charge – appeal on question of law – objection to competency – whether initial appeal “hearing on the merits” – whether appeal against acquittal competent

CRIMINAL LAW – Charge of failing to wear a seat belt “properly adjusted and fastened” –Australian Road Rules, r 264 – “lap sash” seat belt worn around lap but not across torso – whether seat belt “properly adjusted”

WORDS & PHRASES – “properly adjusted”

Motor Vehicle Standards Act 1989 (Cth) s 7

Australian Road Rules r 264, 267(3)

Road Transport (Safety and Traffic Management) Regulations 2000 (ACT) reg 25

Magistrates Court Act 1930 (ACT) ss 207, 208, 214 and 218

Supreme Court Act 1933 (ACT) ss 37E and 37O

Federal Court of Australia Act 1976 (Cth) ss 24 and 28

Thompson v Mastertouch TV Services Pty Ltd (1978) 19 ALR 547 considered

Davern v Messel (1984) 155 CLR 21 applied

Hatty v Pilkinton (1991) 28 FCR 352 followed

R v Carroll (2002) 194 ALR 1 referred to

Attorney-General (NSW) v Jackson (1906) 3 CLR 730 referred to

The King v Weaver (1931) 45 CLR 321 referred to

The King v Wilkes (1948) 77 CLR 511 at 516-517 referred to

The Queen v Darby (1982) 148 CLR 668 referred to

Allesch v Maunz (2000) 203 CLR 172 at 197-181 referred to

Suvaal v Cessnock City Council [2003] HCA 41 at [74] referred to

Pilkinton v Hatty (1992) 66 ALJR 868 referred to

New South Wales Meat Industry Authority v Randall (unreported New South Wales Court of Appeal, 20 April 1994) referred to

Fitzgerald v Kennard (1995) 38 NSWLR 184 followed

At about 5.30 pm, on 28 March 2001, Constable Moroney was driving along Hurtle Avenue, Bonython when he saw the respondent driving a taxi in the opposite direction. He noticed that Mr Wojcicka appeared not to be wearing his seat belt. He based that conclusion upon the fact that he could not see any part of the belt across Mr Wojcicka’s shoulder or chest, claiming that he observed “two belts” hanging down vertically near the “B pillar” of the vehicle. He said that he was only about 15 metres from the taxi when he made this observation, and claimed that his vision was unimpeded.
Constable Moroney said that he followed Mr Wojcicka’s taxi to where it stopped in a nearby driveway. He approached the vehicle, and asked Mr Wojcicka why he had been driving without wearing his seat belt. Mr Wojcicka replied by insisting that he had, in fact, been wearing the seat belt.
Constable Moroney said that when he approached the stationary vehicle, the seat belt, which was of the “inertia reel type”, was hanging vertically, as it had been when he first saw Mr Wojcicka in Hurtle Avenue. Mr Wojcicka did not challenge Constable Moroney’s evidence regarding his seat belt having been unfastened at the time his vehicle stopped in the driveway. He said that he had unfastened it when he allowed a passenger to alight from the vehicle.
Mr Wojcicka acknowledged that he had not been wearing his seat belt in the normal manner when he was first seen by Constable Moroney. He said that some years earlier he had fractured his spine. Since he sustained that injury, he had found it difficult to attach any part of a seat belt across his chest or neck. He claimed that wearing a seat belt in that way would have irritated his injuries, and that as a result, his practice was to pull the sash down, and hook it under the seat adjuster lever, before passing it over his lap, and clipping the buckle into the fastener. He said that he had adjusted the belt in that manner on the day in question.
Before the Magistrate, Mr Wojcicka produced two medical certificates, each of which purported to provide him with an exemption from any requirement that he wear a seat belt. However, these certificates both post-dated the offence. They could not therefore be relied upon in answer to the charge.
Mr Wojcicka maintained that Constable Moroney had wrongly assumed that he had not been wearing his seat belt while driving along Hurtle Avenue, when he had, in fact, been wearing it across his lap, in the manner previously described.
As indicated earlier, the Magistrate found the offence proved. He rejected Mr Wojcicka’s evidence that he had been wearing the seat belt fastened across his lap and accepted instead Constable Moroney’s evidence that the belt had not been fastened at all. This meant, presumably, that the Magistrate convicted Mr Wojcicka upon the basis that he was not wearing a seat belt which was “fastened”, rather than upon the basis that it was not “properly adjusted”.
Surprisingly, in the course of delivering his reasons for decision, the Magistrate said that he was “not satisfied that the defendant was wearing a seat belt across his lap”. In expressing his finding in that way he plainly reversed the onus of proof, thereby erring in law.
The primary judge had no difficulty in arriving at the conclusion that, having regard to the fundamental error made by the Magistrate, it was necessary for the matter to “be determined afresh”. As indicated earlier, Constable Moroney does not challenge this aspect of his Honour’s judgment.
The primary judge could have determined the appeal upon that limited basis. However, he was persuaded not to do so. He noted that although Ms Keys, counsel for Mr Wojcicka, had challenged Constable Moroney’s assertion of having been able to “see” that her client had not been wearing his seat belt, it was common ground that this statement reflected merely an inference on his part. Since there was otherwise no challenge to the credibility of his evidence, both counsel agreed that it would be appropriate for his Honour to resolve the entire matter by reference to the transcript of the evidence before the Magistrate, rather than remitting it for further hearing. His Honour accepted that it was appropriate that he adopt that course.
Before setting out in detail the primary judge’s reasons for judgment it is necessary briefly to set out some of the relevant statutory provisions. Legislative context
The requirement that seatbelts be fitted in motor vehicles arises by the operation of the Motor Vehicle Standards Act 1989 (Cth) (“Motor Vehicle Standards Act”) and in particular, the Australian Design Rules which are part of the regulatory scheme. The Motor Vehicle Standards Act sets out a uniform scheme for motor vehicle standards. It prohibits the supply of “non-standard” vehicles, pursuant to ss 13A and 14, although it provides for a number of exceptions which are not presently relevant.
Section 7 of the Motor Vehicle Standards Act provides that the relevant Minister may determine, in writing, vehicle standards for road vehicles. The Australian Design Rules are a national standard made under s 7.
The Australian Design Rules requires that seatbelts be fitted, in a prescribed manner, to certain types of vehicles. The function of the rule is to: “specify requirements for seatbelts to restrain vehicle occupants under impact conditions, to facilitate fastening and correct adjustment, to assist the driver to remain in his ‘Seat’ and thus maintain control of the vehicle in an emergency situation, and to provide protection against ejection in an accident situation.”
Mr Wojcicka was charged with an offence under r 264 of the ARR for not having worn a seat belt “properly adjusted and fastened” while driving a vehicle. Rule 264 provides as follows: “Wearing of seatbelts by drivers

However, there are exemptions to the requirement that a seat belt be worn. Rule 267 relevantly provides: “Exemptions from wearing seatbelts … (3) A person is exempt from wearing a seatbelt if: (a) the person (or, for a passenger, the driver of the vehicle in which the person is a passenger) is carrying a certificate, issued under another law of this jurisdiction, stating that the person is not required to wear a seatbelt; and (b) the person is complying with the conditions (if any) stated in the certificate.”
It should be noted that Reg 25 of the Road Transport (Safety and Traffic Management) Regulations 2000 (ACT) relevantly provides: “For the [ARR], rule 267(3) a certificate is issued under a law of this jurisdiction for a person if: (a) the certificate is signed by a doctor; and (b) it certifies that: (i) the person cannot wear a seatbelt for medical reasons; ..”
Mr Wojcicka brought his appeal to the Supreme Court invoking its jurisdiction under ss 207, 208, 214 and 218 of the Magistrates Court Act 1930 (ACT). It is clear that the Supreme Court does not hear an appeal under these provisions “de novo”, but rather proceeds upon a record of the evidence taken before the Magistrate. There is a power to receive additional evidence, but such evidence may only be tendered in limited circumstances: see s 214(4)(a) and (b).
The appeal from the Supreme Court to the Court of Appeal is brought pursuant to ss 37E and 37O of the Supreme Court Act 1933 (ACT). Section 37E confers jurisdiction on the Court of Appeal and is relevantly indistinguishable from s 24 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”). Section 37O sets out the powers of the Court of Appeal, and is likewise relevantly indistinguishable from s 28 of that Act.
Sections 24 and 28 of the Federal Court Act have been the subject of extensive judicial consideration both generally, and in the context of the rule against double jeopardy. We shall consider the approach taken to the construction of these provisions later in these reasons for judgment. Reasons of the primary judge
The primary judge commenced his analysis by noting that there was a factual issue to be resolved. His Honour said at [8]: “Any suggestion that the appellant had not had the belt running across his lap and duly fastened may be readily dismissed. The observations which understandably led Constable Moroney to infer that the appellant had not done so were equally consistent with the account which the appellant gave of the manner in which the belt had been adjusted. Furthermore, when it was put to him that the appellant had been wearing his seat belt across his lap, Constable Moroney conceded that this was possible. Hence, even if the evidence given by the appellant were to be wholly disregarded, it would be inescapable that the evidence of Sergeant [sic] Moroney was incapable of proving beyond reasonable doubt that appellant had not had the seat belt fastened in the manner claimed. Accordingly, it is necessary to determine whether even the use of the seat belt in that manner constituted the offence charged.”
It follows that the primary judge approached the question whether the offence was proved upon the basis that the prosecution had not established that Mr Wojcicka had not been wearing the seat belt fastened in the manner which he described.
His Honour then summarised the submissions of counsel. He noted that it had been submitted on behalf of Mr Wojcicka that the requirement in r 264 that the driver must wear his seat belt “properly adjusted” meant that it should be adjusted to provide “the best possible protection” for the person in question. It had been accepted by counsel that, in most cases, this would require a lap sash belt be adjusted so that one portion would pass across the person’s chest whilst another portion passed across his or her lap. However, there were circumstances in which such an arrangement would be inappropriate. Obvious examples would include people with chest or neck injuries, women in an advanced state of pregnancy, and young children in baby capsules, or other forms of restraint, anchored to the seat of the car by an appropriately adjusted lap sash seat belt.
His Honour further noted that counsel had submitted that, in the present case, a doctor had certified that, because of the respondent’s medical condition, he was unable to wear the seat belt fitted in the taxi across his chest. Hence, adjustment in a manner that would provide the “maximum protection possible” involved securing it across his lap. It was further submitted that there was no doubt that Mr Wojcicka suffered from the back condition referred to in the medical certificates, and that this condition prevented him wearing the seat belt in the normal “lap sash” manner. It was submitted that there was nothing to suggest that the manner in which he had worn the seat belt would not at least have restrained the forward movement of his hips in the event of a collision. It was submitted that the seat belt had, in effect, been adjusted to operate as a lap belt, rather than a lap sash belt, because that configuration provided the “best protection possible” for a person with Mr Wojcicka’s physical limitations. It was submitted that, in those circumstances, the seat belt had been “properly adjusted”, having regard to his physical needs.
On behalf of Constable Moroney, it was submitted that the expression “properly adjusted” in r 264, did not have the meaning for which Ms Keys contended. It was submitted that the requirement was that the seat belt be “properly adjusted” and not that it be worn so as to provide “the best possible protection” for the person in question. A lap sash seat belt could only be “properly adjusted” if the sash portion passed across the chest of the occupant, whilst the lap portion passed across that person’s lap. If there were some difficulty about wearing the seat belt in the normal manner, by reason of the person’s medical condition, that person could gain exemption by obtaining and carrying with him, when driving, an appropriate medical certificate. The evidence was not entirely clear, but it appeared that Mr Wojcicka may in fact have obtained such a certificate prior to the incident in question, but misplaced it. Since he was not “carrying” the certificate when stopped by Constable Moroney, he could not rely upon the defence contained in r 267(3).
The primary judge ultimately accepted that the expression “properly adjusted” in r 264 had the meaning for which Ms Keys contended. His Honour said at [14]: “… the requirement that a seat belt be “properly adjusted” was, in my opinion, intended to ensure that it was adjusted in a manner appropriate to the size, shape and physical condition of the person wearing it. When a person is unable to have a portion of the belt across his or her chest, a proper adjustment will be that configuration capable of providing the most effective protection consistent with the person’s condition. The relevant provision is, after all, concerned with ensuring the safety of drivers and passengers and there is, no conceivable justification for a construction that would require compliance with a practice suitable for normal people even when it might actually create an unnecessary risk of serious injury.”
His Honour concluded at [19]: “The evidence in the present case does not, in my opinion, establish to the requisite standard that the appellant was not wearing a seat belt which was properly adjusted and fastened. Hence, the appeal must be upheld, the convictions and offers set aside and a verdict of acquittal entered.”

By notice of appeal dated 24 December 2002, Constable Moroney appeals from the whole of the judgment of the primary judge given on 6 December 2002.
The grounds of the appeal are: (a) that his Honour misconstrued the meaning of “properly adjusted” in r 264 of the ARR; (a) that there was no evidence from which his Honour could find that the manner in which the respondent had his seat belt adjusted provided the best possible protection for the respondent or, alternatively, the most effective protection consistent with the respondent’s condition; and (b) that there was no evidence from which his Honour could find that the manner in which the seat belt worn by the respondent when properly adjusted might create an unnecessary risk of serious injury for the respondent. The competency of the appeal
No notice of objection to competency, or other equivalent document, was filed on behalf of Mr Wojcicka objecting to the competency of the appeal. Nor did his counsel raise any such issue in her summary of argument which was filed on 9 May 2003, four days prior to the hearing of the appeal. However, when the appeal was called on, Ms Keys raised, apparently for the first time, an objection to its competency. She relied primarily upon Thompson v Mastertouch TV Services Pty Ltd (1978) 19 ALR 547 (“Mastertouch”), a decision of the Full Federal Court. She submitted that the appeal was incompetent because it was an appeal against an acquittal by a court of competent jurisdiction, entered after a hearing “on the merits”.
Mr Refshague SC, the Director of Public Prosecutions, submitted on behalf of Constable Moroney that the appeal was competent. He sought to distinguish Mastertouch, and, for this purpose, relied primarily upon the decision of the High Court in Davern v Messel (1984) 155 CLR 21. Subsequently, after oral argument in the appeal had been concluded, he filed a written submission drawing attention to Hatty v Pilkinton (1991) 28 FCR 352, a decision of the Full Court of the Federal Court which he submitted was directly in point. He contended that the judgment, which concerned a case on all fours with the present, determined conclusively that the Court of Appeal had jurisdiction to entertain this appeal.
The issue of the competency of the appeal is complicated somewhat by a degree of uncertainty regarding the course taken by the primary judge. The proceeding before his Honour was unquestionably a criminal proceeding. It resulted not just in the quashing of the conviction, but also in the dismissal of the charge brought against Mr Wojcicka. His Honour referred, in terms, to having entered “a verdict of acquittal”. Constable Moroney seeks to have that verdict set aside. Indeed, he seeks an order that would have the effect of reinstating the Magistrate’s finding that the charge brought against Mr Wojcicka was proved, although he is content to have the charge formally dismissed under s 402 of the Crimes Act 1900 (ACT), in accordance with the view of the primary judge that this would have been an appropriate disposition, had the offence been proved.
As previously indicated, Ms Keys sought to rely upon a well-established principle of the common law, namely, that there should be no appeal from a judgment of acquittal pronounced in criminal proceedings by a court of competent jurisdiction after a hearing on the merits. She submitted that this principle was fundamental to the administration of criminal justice. She further submitted that legislation should only be construed as involving a departure from it if, and to the extent that, such a departure was the result of express and unambiguous words: see Mastertouch. Conclusions regarding competency
The decision of the Full Court in Mastertouch is undoubtedly an appropriate starting point in considering whether this appeal is competent. In that case, Deane J (with whom Smithers and Riley JJ agreed) delivered a careful and comprehensive judgment analysing the power of the Full Court of the Federal Court to entertain an appeal against acquittal entered by a Judge at first instance. His Honour identified a principle, which he regarded as fundamental, to the effect that a person acquitted by a court of competent jurisdiction after a trial on the merits of a criminal charge is to be spared the renewed jeopardy of an appeal against the acquittal.
It is to be noted that the principle, as explained by his Honour, was applicable only to cases where there had been a “hearing on the merits”. That was an expression which his Honour did not define. He noted, however, that the main departure from the principle was to be found in legislative provisions providing for the review of decisions of justices and stipendiary magistrates. On the establishment of the Commonwealth of Australia, the Constitution itself introduced a further departure from the principle via s 73. That section relevantly conferred upon the High Court: “… jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences – (i) Of any Justice or Justices exercising the original jurisdiction of the High Court: (ii) Of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of an other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council …”
Deane J referred to Attorney-General (NSW) v Jackson (1906) 3 CLR 730, where it was held that the jurisdiction conferred by s 73 clearly included jurisdiction to hear an appeal against a decision of the Supreme Court of New South Wales which had quashed a jury’s verdict that the respondent was guilty of murder, and discharged him from custody. The High Court reversed the judgment of the Supreme Court, and affirmed the conviction. His Honour said at 553: “… In one sense, the judgment of the Supreme Court on appeal which had discharged the respondent was a judgment of acquittal. On the other hand, the principle that there should be no appeal from a judgment of acquittal had been developed and expressed in cases in which the relevant acquittal had been at the initial trial and not by an appellate court in the course of an appellate chain initiated by a person convicted in the original criminal proceedings. There are obviously some grounds for arguing that the two categories of acquittal are, for present purposes, distinguishable: such a distinction has, in fact, been recognized in United States cases arising under the double jeopardy clause of the Fifth Amendment … “
After analysing the authorities, and giving careful consideration to ss 24 and 28 of the Federal Court of Australia Act 1976 (Cth), Deane J concluded that the language contained within those sections was too general and uncertain, to override the common law principle to which he had earlier referred. In the result, he concluded that the appeal was incompetent and should be dismissed.
It is important to appreciate that Mastertouch involved an appeal from a judgment of acquittal by a single judge of the Federal Court who had plainly heard and determined a criminal prosecution “on the merits”. The present case is of course significantly different in that the initial hearing was before a Magistrate who convicted the defendant, and not before the Judge whose decision to acquit is the subject of this appeal.
It was Mr Wojcicka who invoked the appellate process, as he was entitled to do. He succeeded in his appeal in having his conviction quashed. However, more than that, he succeeded in having the charge against him dismissed.
Constable Moroney, having been successful before the Magistrate, only to have Mr Wojcicka’s charge dismissed on appeal, seeks to appeal against that decision. The question to be resolved is whether he is precluded by the rule against double jeopardy, or some underlying principle related to that rule, from doing so.
It is clear that Davern v Messel is of central importance to the resolution of this question. That case concerned Professor Harry Messel who was convicted by the Chief Stipendiary Magistrate of the Northern Territory of offences under the Fisheries Act 1965 (NT). He appealed against the conviction to the Supreme Court of the Northern Territory. Gallop J allowed the appeal and quashed the convictions. The complainant before the Magistrate then instituted an appeal from the decision of the Supreme Court to the Full Court of the Federal Court, which by majority upheld an objection to the competency of the appeal on the ground that an appeal did not lie under s 24(1) of the Federal Court Act from a judgment of acquittal pronounced by a superior court on the merits. The complainant sought special leave to appeal to the High Court from the decision of the Federal Court. There are at least three, and arguably four, separate strands of reasoning in the various judgments of the members of the Court.
Gibbs CJ (with whom Wilson and Dawson JJ agreed) noted that, in quashing the convictions, Gallop J had expressly eschewed any consideration of the merits of the case. His Honour said that he had reached his decision regarding the charges “because of the highly unsatisfactory state of the legislation”. What his Honour meant by that statement is not clear, but what was important so far as Gibbs CJ was concerned was his denial of having embarked upon a consideration of the “merits of the case”.
It is significant to note that Gibbs CJ referred specifically to Mastertouch. His Honour observed that the appeal in that case was from the dismissal by a single judge of the Federal Court of an information laid against the party who ultimately became the respondent to the appeal. Gibbs CJ referred to the rule against double jeopardy, emphasising that the purpose of the rule was to ensure fairness to the accused. It would obviously be oppressive and unfair if a prosecutor, disappointed with an acquittal, could secure a retrial of the accused on the same evidence, perhaps before what the prosecutor “considered to be a more perspicacious jury or tougher judge”. His Honour went on to observe that when the prosecution seeks to appeal from an acquittal, the rule against double jeopardy has an “indirect application”. An appeal is a remedy given by statute. The scope of the appeal must be governed by the terms of the enactment creating it. The question whether an appeal lies from an acquittal must therefore be decided as a matter of statutory interpretation.
Gibbs CJ accepted that it is a canon of statutory interpretation that no statute will be construed as abrogating a fundamental principle of the common law unless an intention to do so is clearly expressed.
Gibbs CJ further noted that the view had been taken that notwithstanding that the rule against double jeopardy meant merely that a person could not be tried twice for the same offence (as to which see R v Carroll (2002) 194 ALR 1), it operated to prevent an appeal against an acquittal since it required that the acquittal be treated as final. Importantly for present purposes, his Honour expressly stated that, in his view, Mastertouch had been correctly decided. He noted that ss 24 and 28 of the Federal Court Act were quite general in their terms. The provisions of s 28(1)(e) indicated that the Court, on appeal, would have no power to order a verdict of guilty to be entered, and therefore no power to set aside a verdict of not guilty.
Gibbs CJ said at 33: “I accordingly respectfully agree with the conclusion of Deane J in Thompson v Mastertouch TV Service Pty Ltd [No 3] that the general words of s24 do not affect the right of the subject to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction. Room may remain for argument on the question when a hearing is not one on the merits, but that question raises no difficulty in the present case.” (footnote omitted)
However, his Honour observed that Mastertouch was clearly distinguishable. He continued at 33: “To approve of the decision in Thompson v Mastertouch TV Service Pty Ltd is not, however, to resolve the present question, since, as I have said, that decision dealt with a case of an appeal brought directly from an acquittal. We are now concerned with the case of an appeal brought from a decision given on an appeal from a conviction. The question is whether, in such a case, the general words of the statute permitting the second appeal should not be understood to confer on the ultimate appellate court power to correct a patent error of law which has been committed by the first court of appeal. I can see no reason in principle or authority why in such a case the general provisions of the statute should be given a restricted meaning.”
His Honour concluded: “The question then is whether the rule against double jeopardy has any application when the accused has been convicted and has himself invoked the appellate procedure. The rule against double jeopardy is not a mere fetish, an empty formula to be applied blindly in all circumstances. It exists, as I have said, to ensure fairness and prevent oppression. It seems to me neither unfair nor oppressive to restore a conviction that was set aside on erroneous legal grounds.”.
Gibbs CJ supported his conclusion that an ultimate appellate court had power to correct a patent error of law committed by an intermediate court of appeal even where that intermediate court had entered an acquittal by referring to the practice of the House of Lords in not infrequently reversing decisions of the Court of Criminal Appeal directing verdicts to acquit. His Honour also referred to a similar practice in the Privy Council.
Gibbs CJ referred specifically to the distinction drawn in R v Weaver (1931) 45 CLR 321 between a verdict of acquittal given by a jury in a criminal trial and the decision of the Court of Criminal Appeal quashing a conviction and entering judgment and verdict of acquittal. There Evatt J said at 356: “… The verdict of acquittal entered by the Supreme Court as a Court of Criminal Appeal, whatever it may be in point of form, differs greatly in substance from an original verdict of a jury to whom an accused person has been given in charge upon an indictment and who have acquitted. The jury’s verdict of not guilty has a special constitutional finality and sanctity which are always regarded as an essential feature of British criminal jurisprudence.”
Gibbs CJ then referred to The King v Wilkes (1948) 77 CLR 511 at 516-517, where Dixon J recognised that a judgment of a Court of Criminal Appeal quashing a conviction was not to be equated with an acquittal by a jury. Gibbs CJ also referred to The Queen v Darby (1982) 148 CLR 668, where an appeal from a judgment of the Full Court of the Supreme Court of Victoria quashing a conviction was allowed, and the conviction affirmed. His Honour concluded that the approach taken by the High Court in relation to this issue accorded with that adopted by the Supreme Court of the United States. That was a matter of considerable significance, since the rule against double jeopardy was constitutionally entrenched in that country.
Gibbs CJ expressly distinguished the position of an appeal to quarter sessions, or its modern equivalent. He said at 40: “There can be no doubt that under s 24 of the Federal Court of Australia Act the Federal Court is competent to hear and determine an appeal from a decision of the Supreme Court of the Northern Territory given on an appeal under the Justices Act (N.T.) affirming a conviction. There is in my opinion no reason why it cannot also hear and determine an appeal from a decision given by that Supreme Court quashing a conviction. The fact that Gallop J conducted the appeal as a rehearing does not affect the position. The appeal given by the Justices Act (N.T.) is not either an appeal to quarter sessions or the successor of or modern equivalent to such an appeal, and if quarter sessions appeals occupy a special position, that does not affect the present question. In any case, the appeal was not from a judgment given on a rehearing, because Gallop J had not completed the taking of the evidence; he made no adjudication on the facts and his decision was entirely of questions of law.”
His Honour’s reference to “an appeal to quarter sessions, or its modern equivalent”, appears to have been to the jurisdiction conferred by way of rehearing de novo which is often given to District or County Courts on appeal from courts of summary jurisdiction. No jurisdiction of that nature was conferred upon the Supreme Court in the present case. To the extent that the primary judge in this case was entitled to review the facts, he was essentially bound to confine himself to the transcript of the evidence adduced before the Magistrate. Any additional evidence could be led only in exceptional circumstances. Whilst the hearing before the primary judge may have been a rehearing in the technical sense, it was not relevantly “a hearing on the merits”, at least not in the sense akin to “an appeal to quarter sessions, or its modern equivalent”. (Allesch v Maunz (2000) 203 CLR 172 per Gaudron, McHugh, Gummow and Hayne JJ at 179-181; Suvaal v Cessnock City Council [2003] HCA 41 per McHugh and Kirby JJ at [74])
It is important to note that Gibbs CJ referred to the power given to the Federal Court to entertain appeals by s 24(1) and also the powers of the Court in the exercise of its appellate jurisdiction in s 28. As noted earlier, the corresponding provisions regarding appeals to this Court are contained in s 37E and s 37O respectively. Although the language in these provisions is not precisely the same as that used in the Federal Court Act, there appears to be no real distinction.
It follows that the analysis of ss 24 and 28 in Davern v Messel is directly applicable to the provisions which govern the jurisdiction conferred upon this Court to entertain appeals from judges at first instance, and the powers of this Court in the exercise of that jurisdiction.
The second strand in the reasoning in Davern v Messel is to be found in the joint judgment of Mason and Brennan JJ. Their Honours agreed with Gibbs CJ (and Wilson and Dawson JJ) that the appeal should be allowed. However, their reasoning may be thought to go somewhat further. They seemed to place little, if any, weight upon the fact that Gallop J had not, in his terms, engaged in “a hearing on the merits”, apparently regarding that as an irrelevant consideration.
Mason and Brennan JJ expressly agreed with Gibbs CJ that Mastertouch had been correctly decided. However, they distinguished that case upon the basis that it involved an appeal from an initial hearing which resulted in an acquittal, unlike Davern v Messel which concerned an appeal from a judgment of acquittal by an appellate court which followed a successful appeal by the accused.
Their Honours said at 60: “The fundamental question, however, as it seems to us, is whether once the defendant appeals from a conviction at first instance, thereby setting the appellate process in motion, it is legitimate for the prosecutor by recourse to the same process to have an error on the part of the first appellate court corrected. As Friedland comments, at p. 293, once the case is in the appellate hierarchy there is no legitimate reason why the matter should not be determined by the higher court. The exercise, on proper occasions, of the further appellate jurisdiction is important to ensure the due administration of justice in the individual case as well as for the general administration of the criminal law ….”
The third, and perhaps fourth, strands of the reasoning in Davern v Messel are to be found in the dissenting judgments of Murphy and Deane JJ.
Murphy J invoked the rule, of great antiquity, that a person who has been acquitted on a criminal charge should not be tried again on the same charge. His Honour held that the principle extended to every kind of acquittal, whether or not based on a jury verdict. Importantly, he said at 62: “The principle applies where there is “a hearing on the merits”, that is a dismissal based on a determination, correct or incorrect, of the law or facts of the case. The requirement of a hearing on the merits is satisfied even if the decision is based on a legal technicality, or when the prosecution tendered no evidence to support the charge.”
It is perhaps doubtful that his Honour’s broad definition of the expression “a hearing on the merits” would have much judicial support today. For a helpful discussion of the meaning of that expression, see generally F J Purnell, “A Hearing on the Merits?” (1984) 8 Crim LJ 326, and the various cases cited therein. Of particular importance, however, is Murphy J’s rejection of what he described as “an artificial distinction” between acquittals at first instance, and acquittals at other stages. The fact that the acquittal on appeal may have occurred because of what is considered to be a legal error by the acquitting court was immaterial. The same could occur whether it was at first instance, or on appeal. The purpose of the rule was to protect persons who had been acquitted, even by legal error. The person was not to be put in jeopardy after an acquittal, mistaken or not.
Interestingly, Murphy J went on to say at 64: “In the instant case there was a hearing on the merits, although in dealing with an application for costs, Gallop J said that he had “not embarked upon a consideration of the merits” but had found that there was no prima facie case “because of the legislation itself and the difficulties of interpretation”. That should be understood as meaning that he had not considered the factual merits. I agree with the view of Sheppard and Morling JJ that the course adopted by Gallop J constituted a hearing on the merits as that expression is understood in the application of the no appeal after acquittal principle.”
Deane J, by now on the High Court, reiterated what he had earlier said in Mastertouch. However, his Honour went further. He considered the principle of which he had spoken in that case to be applicable to an acquittal by an appellate court of competent jurisdiction on an appeal against conviction instituted by an accused person. Somewhat curiously, his Honour made no reference to any need for the matter to have been considered “on the merits” as a precondition to the application of the principle, although he does allude to this concept at one point in his judgment at 67.
Davern v Messel is a difficult case because there appears to be no statement of principle which commands the acceptance of a majority of the Court. See generally A O’Connell, “Double Jeopardy”, (1984) 58 Law Inst J 1044. Gibbs CJ plainly had in mind some limitation upon the right of an appeal against acquittal based upon the nature of, and extent to which, there was in fact consideration of the “merits” of the case by the intermediate appellate court. However, it is equally plain that Mason and Brennan JJ, who agreed that the appeal should be allowed, did not regard “a hearing on the merits” as being a relevant consideration. Murphy J plainly considered such a hearing to be critical. However, his Honour’s definition of the expression was so broad that almost every case would be regarded as involving a “hearing on the merits”. Interestingly, Deane J did not mention the need for such a hearing, as a condition for the application of the principle, at all.
It is perhaps because Davern v Messel is of uncertain general scope that both sides in this appeal confidently asserted that it supported their respective contentions.
Ms Keys submitted that it was plain that the primary judge had engaged in a hearing “on the merits” in the present case. She referred, in particular, to his Honour’s finding that the evidence did not establish that Mr Wojcicka had been driving without having his seat belt fastened in the manner which he described. She noted that his Honour was not prepared to conclude, as the Magistrate had, that Mr Wojcicka’s evidence on this issue should be rejected.
According to Ms Keys, his Honour’s resolution of this factual dispute meant that the hearing before him had been a “hearing on the merits”. There is some force in this submission. However, there is an answer which is, in our opinion, determinative. The finding of fact made by his Honour did not, in substance, lead to his decision to dismiss the charge. The reason that he entered “a verdict of acquittal” was because he was persuaded by Ms Keys that the expression “properly adjusted” had the “subjective” connotation for which she contended. In reality, although his Honour made a finding of fact which was more favourable to Mr Wojcicka than that made by the Magistrate, that finding did not, of itself, lead to his acquittal. Had the expression “properly adjusted” been interpreted in the manner for which Constable Moroney contended, Mr Wojcicka would still have been convicted.
The passages from the judgment of Gibbs CJ (agreed to by Wilson and Dawson JJ) set out at [49] and [50] above and from the judgment of Mason and Brennan JJ set out at [60] above are consistent and, if applied according to their terms to this case, would require rejection of the submissions as to competence on behalf of Mr Wojcicka.
In resolving whether these passages should be so applied, there is considerable assistance to be gained from the judgment of the Full Court in Hatty v Pilkinton. In that case, the respondent was convicted of an offence in the Magistrates Court of the Australian Capital Territory. On appeal to the Supreme Court the conviction was set aside and a judgment of acquittal was entered. The informant appealed to the Full Court seeking orders setting aside the decision of the Supreme Court, and restoring both the conviction and sentence imposed by the Magistrate. The respondent sought an order dismissing the appeal as incompetent.
The Full Court (Black CJ, Neaves and Spender JJ) dismissed the objection to competency. Their Honours referred to Mastertouch, and then turned to Davern v Messel. They said at 358: “Mr Hughes submits that Gibbs CJ reached the conclusion that the appeal to this Court was competent only because the decision of the Supreme Court of the Northern Territory was not an adjudication on the facts but only upon question of law. We are unable to accept this submission. It is clear from the passage last cited [at 40] from his Honour’s judgment that that circumstance was not the decisive factor but an additional circumstance supporting the conclusion that the appeal to this Court was competent. We think it follows clearly from what his Honour said that, even had the Supreme Court completed the hearing on which it had embarked and at the conclusion of that hearing quashed the convictions on any grounds, s 24 of the Federal Court of Australia Act would have operated to permit an appeal to be brought to this Court.

Hatty v Pilkington is authority for the proposition that the power of the Federal Court, pursuant to s 24 of the Federal Court Act, to hear an appeal from a lower court exercising appellate jurisdiction of its own, does not depend on whether the decision of that court is based solely upon the answer to a question of law. It is at least implicit in the judgment of the Full Court that the mere fact that the lower court engaged in some consideration of “the merits” does not, of itself, preclude an appeal against a judgment of acquittal.
Hatty v Pilkinton was the subject of an unsuccessful application for special leave to appeal to the High Court. In Pilkinton v Hatty (1992) 66 ALJR 868, Brennan J observed: “The applicant relies on some passages from the judgment of Gibbs CJ in Davern v Messel (1984) 155 CLR 21, to support a submission that no appeal lies to the Federal Court from an acquittal by an intermediate court when the appeal is brought to correct an alleged error of fact only. This argument encounters the difficulty that perusal of the judgments reveals that the appeal was allowed on a ground that involves both fact and law.”
To the extent that any authoritative statement of principle can be derived from the reasons given by the High Court for refusing special leave to appeal, it can at least be said that no doubt was cast upon the reasoning of the Full Court. Indeed, implicit in the short statement of reasons by Brennan J was the proposition that an appeal on a ground that involves an error of law is not barred by anything said in Davern v Messel.
There is support for the approach taken in Hatty v Pilkinton in the judgment of Kirby ACJ, as his Honour then was, in Fitzgerald v Kennard (1995) 38 NSWLR 184. The appeal to the Court of Appeal was from a declaration by a judge of the Supreme Court that a conviction recorded by a Magistrate against the respondent was bad in law so that the informant should be prohibited from proceeding upon it. Kirby ACJ concluded that the declaration and orders of the primary judge were not equivalent to a verdict of acquittal by a jury after a trial on the merits, and did not preclude a further appeal by the informant. His Honour said, at 186: “Whilst the present case remains within the court system, decisions at different levels of the hierarchy are not a final acquittal or conviction of the respondent. In this appeal, this Court has its function to discharge. Until the end of the appellate line is reached, the proceedings between the appellant and the respondent have not been finally adjudicated upon. There is therefore no impediment in this Court’s determining the appeal on the merits.”
In C I & D Manufacturing Pty Ltd v Registrar Industrial Court of New South Wales (1996) 40 NSWLR 1, the Court of Appeal held that the Full Court of the Industrial Court of New South Wales did not have jurisdiction to hear an appeal from an acquittal by a single judge of an offence under the Occupational Health and Safety Act 1983 (NSW). However, that conclusion turned upon the language s 297 of the Industrial Relations Act 1991 (NSW), which conferred jurisdiction upon the Full Court to hear appeals from decisions of judges sitting alone. It was held that the section did not clearly and unambiguously confer a right to appeal from such an acquittal. The Court made no mention of Hatty v Pilkinton, or indeed the observations of Kirby ACJ in Fitzgerald v Kennard.
It is important to note that in C I & D Manufacturing Pty Ltd, Mahoney P regarded Gibbs CJ, in Davern v Messel, as having drawn a distinction between an appeal where there had originally been an acquittal on the merits, and a case in which, after conviction, the appellate procedure had been invoked by the accused. His Honour observed, at 4, that the “rule” was to be applied in the first case but “not necessarily” in the second.
In an earlier decision, in New South Wales Meat Industry Authority v Randall (unreported New South Wales Court of Appeal, 20 April 1994), Mahoney AP (with whom Priestley and Clarke JJA agreed) dealt with an application for relief in the nature of certiorari against a decision of the District Court in which a conviction for various breaches of the law in respect of the sale of meat was quashed. The District Court Judge who allowed the appeal did so upon the basis that the Meat Industry Authority, which was the informant, had not appeared although, as it transpired, it had not been given notice of the hearing.
Before the Court of Appeal, it was submitted that certiorari should not go to quash an order acquitting a defendant in a criminal proceeding. Mahoney AP held that whatever the content of the doctrine of double jeopardy, it could only apply where there had been a “hearing on the merits”. In the instant case the matter had not been “disposed of on the merits or as the result of a formal and substantial hearing”. The proceeding had been dismissed because, in the absence of notice, the Authority had not appeared. That was not a “hearing on the merits” for the purpose of the rule.
The High Court has considered the powers of appeal vested in the Crown, and whether they extend to appeals against decisions of intermediate appellate courts quashing convictions, and ordering new trials, or acquittals in a number of cases. In R v Benz (1989) 168 CLR 110, the Court refused special leave to appeal but the judgment makes it plain that the power, under s 73 of the Constitution, to set aside the decision of the Queensland Court of Criminal Appeal was not in doubt.
It should also be noted that in Byrnes v The Queen (1999) 199 CLR 1, Bond v The Queen (2000) 201 CLR 213 and Macleod v Australian Securities and Investments Commission (2002) 191 ALR 543 at 553, the High Court gave consideration to the rule against double jeopardy. The issues raised in these cases were said to be separate and distinct from those raised by the particular provisions considered in Davern v Messel. Note also the judgment of the Full Court of the Supreme Court of South Australia in Australian Securities and Investments Commission v Vis (2000) 158 FLR 56 at 64.
As we have already emphasised, the primary judge’s decision to enter a judgment of acquittal in the present case was based, in substance, upon his Honour’s interpretation of the expression “properly adjusted”. If that interpretation is correct, the judgment of acquittal must stand. If, however, that interpretation is erroneous, there is no reason in principle for denying Constable Moroney the opportunity to have it corrected. Indeed, there are sound reasons for ensuring that the error is not perpetuated. We reject the objection to competency. Substantive issue on the appeal – the meaning of “properly adjusted”
As noted earlier, the primary judge concluded that the expression “properly adjusted” in the ARR meant “adjusted in a manner appropriate to the size, shape and physical condition of the person wearing it”. His Honour found, in substance, that the term “adjusted” within the composite expression “properly adjusted” was inherently “subjective”. He supported that conclusion by reference to practical examples of subjective factors which might be relevant in the application of the expression. The subjective approach which was taken is challenged in this appeal.
Mr Refshauge commenced his submissions by noting that the meaning of the expression “properly adjusted” had not been considered by the Magistrate. That was because he found, as a fact, that Mr Wojcicka did not have his seat belt “fastened”, and accordingly could not be said to have been wearing it at all. Having overturned that finding, the primary judge determined that it was necessary to consider whether the alternative basis for the charge had been made out. In other words, his Honour had to determine whether, on the assumption that Mr Wojcicka’s account was true, his seat belt was “properly adjusted”. His Honour was not referred to any authorities which might assist in the interpretation of that expression.
The primary judge accepted that the usual manner in which a lap sash seat belt is adjusted is: “… so that one portion would pass across the person’s chest whilst another portion passed across his or her lap.”
It was submitted by Mr Refshauge that a lap sash seat belt must be worn in this way if it is to be regarded as “properly adjusted”. The primary judge found, however, that the expression was to be understood by reference to the characteristics of the person wearing the seat belt. In particular, when a person was unable to have a portion of the belt across his or her chest, a “proper adjustment” would be that configuration capable of providing “the most effective protection consistent with the person’s condition”.
Mr Refshauge submitted before this Court that there was no warrant for interpreting the expression “properly adjusted” in this manner. The ARR were plainly intended to provide for the compulsory wearing of seat belts. It was at least implicit in the language used that their purpose was to ensure that seat belts were fitted, and worn, in accordance with their design.
Mr Refshauge further submitted that the requirement that seat belts be worn broadly in conformity with their design was supported by the fact that failing to wear them “properly adjusted” amounted to an offence. The penalty for that offence was a fine. If the police, as enforcement officers, had to consider matters such as the size, build or other physical characteristics of a person before being able to determine whether that person was in breach of the relevant provision, it would effectively make enforcement of that provision impossible. A person could simply assert that he or she was wearing the seat belt in a manner which did not accord with its design because of some characteristic, or condition, unique to that person. He or she might, for example, claim to have a soft tissue injury, the existence of which could not, as a practical matter, be refuted. This would be proffered as an excuse for having worn the seat belt in an unorthodox manner. A police officer who questioned that person about that matter would have no real basis for rejecting any such explanation. The officer would therefore have no justification for charging the person with the offence.
Mr Refshauge also submitted that it could not have been the intent of the draftsman of r 264 that experts be called in such cases, to give evidence regarding various conditions or injuries which might justify wearing a seat belt in an abnormal manner. In particular, such experts could hardly be expected to have admissible opinions regarding whether a seat belt, worn in that way, would provide, in his Honour’s terms, “the best possible protection”.
Mr Refshauge submitted that the structure and text of the ARR, taken as a whole, told strongly against the interpretation of the expression “properly adjusted” adopted by the primary judge. For example, the offence under r 264 could be committed either by not having the seat belt “fastened”, or by not having it “properly adjusted”. If all that was required by that provision was that the seat belt be “fastened” there would have been no need to include the additional requirement that it be “properly adjusted”.
Mr Refshauge further submitted that when the ARR were read as a whole, it became clear that r 264 could not be interpreted in the “subjective” manner adopted by the primary judge. He noted that r 267 provided an exemption from liability which was quite specific in its application. A person could avoid liability under r 264 if that person carried with him, while seated in the vehicle, an appropriately endorsed medical certificate. Unusually, for provisions of this type, r 267 required not merely the existence of a medical certificate, but also that it be “carried”. He submitted that the intention of the draftsman was clear. It was only in the circumstances set out in r 267 that a person could be excused either from wearing a seat belt, or wearing it in a manner which conformed with its obvious design. In the case of a lap sash seat belt, this meant wearing the sash across the chest.
Mr Refshauge also relied upon grounds (b) and (c) in the notice of appeal. He submitted that there was no evidence before the primary judge that permitted the conclusion that a lap sash seat belt worn in the manner described by Mr Wojcicka was, in any way, suitable for a person with his condition. There was nothing to suggest that a seat belt worn in that manner would provide any real protection in the event of a collision. Indeed, it was possible that wearing a seat belt in that way was more dangerous than not wearing it at all.
Ms Keys, on the other hand, submitted that the primary judge had adopted a correct interpretation of the expression “properly adjusted”. She drew attention to the definition of the word “adjust” in the Concise Oxford Dictionary as “arrange, order, … adapt (to standard or purpose) …”. She submitted that the word “adjusted” plainly imported a range of considerations unique to the individual who wore the seat belt. Moreover, the approach taken by the primary judge recognised the need for flexibility in applying the legislative standard. She was otherwise content to rely upon the reasoning of the primary judge. Conclusions – meaning of the expression “properly adjusted”
It is one thing to focus upon the word “adjusted” in r 264. It is altogether another to do so without considering whether the use of the adverb “properly”, which immediately precedes the word “adjusted”, establishes that the composite expression is used in an objective sense in this context.
The same dictionary upon which Ms Keys relied defines the word “properly” as “fittingly, suitably, … rightly, duly …”. That definition suggests an objective standard. It does not support the conclusion that a person’s belief that he or she is wearing a seat belt “properly” is determinative of whether that is the case.
Neither side was able to cite any authority directly in point on the question of the meaning of “properly adjusted”. So far as we can tell, there is no such authority. Mr Refshauge did refer to a judgment (of Cox J) in the Supreme Court of South Australia in Tabe v Stanbury (1988) 8 MVR 48. In that case a woman, aged 26, was riding in the back of a station wagon when it was involved in a collision with another vehicle. She suffered serious head injuries, and sued for negligence. She was not wearing a seat belt. There were seat belts fitted in the back of the vehicle which were in good order. It was found that the injured passenger was lying on her back when the accident happened. By s 162ab of the Road Traffic Act 1961 (SA) the wearing of seat belts was compulsory and there was no exemption in favour of pregnant women. The injured passenger claimed damages.
Cox J gave judgment for the plaintiff but concluded that she was guilty of contributory negligence in showing an insufficient regard for her own safety, and that she should have appreciated the risk involved in not wearing a seat belt.
The significance of the case lies in the fact that the relevant legislation not only required that a person seated in a motor vehicle wear a seat belt, but that it be “properly adjusted and securely fastened”. His Honour observed, at 51, that even if the plaintiff had been “lying on the seat with a seat belt somehow around her” this would not constitute wearing it “properly adjusted and securely fastened”. His Honour said: “I say that because, having in mind the design of the standard seat belt and the purpose it is clearly intended to serve, an ordinary seat belt, unless adapted or fitted by the user in some special way, could not in my judgment be described, in the case of a user who is lying down, as “properly adjusted and securely fastened”, and that is what the section required.”
There is also a judgment of the Division Court in England which may be of some marginal relevance to this appeal. In Director of Public Prosecutions v Shaw (1992) 157 JP 1035, McCowan LJ (with whom Popplewell J agreed) held that the respondent, who had fitted to his seat belt (an “inertia reel” type) a clip designed specifically to allow the belt to be worn loosely, and which had the effect of allowing the belt to hang down vertically to the waist before crossing to the fixed point between the front seats, was not guilty of the offence of failing to wear a seat belt.
The Regulations defined a seat belt as “a belt intended to be worn by a person in a vehicle and designed to prevent or lessen injury … in the event of an accident”. Not surprisingly, the justices, who heard the case summarily, were of the view that it had not been proved that the respondent was not wearing a seat belt. There was nothing to suggest that the use of the clip would in any way render the belt less effective in preventing, or lessening, injury. The issue in that case turned solely upon whether the seat belt was relevantly being “worn”, and not, as in the present case, whether it was “properly adjusted”.
There are undoubtedly individuals who, for whatever reasons, are not convinced of the merits of wearing seat belts. Such individuals cannot call in aid their idiosyncratic views as an excuse for not wearing seat belts which are “fastened”.
A seat belt cannot be “properly adjusted” unless it is “fastened”. However, the converse is not true. There is no reason to assume that the component of the offence which relates to the words “properly adjusted” allow for a seat belt to be worn in a manner that does not conform, at least broadly, with the design specifications of that belt. To wear a seat belt in an unorthodox manner, not in conformity with its design, may be dangerous even if that belt is “fastened”. To permit evidence to be led regarding the personal characteristics of the wearer as a defence to a charge of not having worn the belt “properly adjusted” would be to render the offence, under r 264, hopelessly vague and uncertain. This is, at least, an indication that the interpretation of the provision adopted by the primary judge was not what the draftsman had intended.
Although it is true that the size and shape of a person’s body may allow for particular adjustments to be made when wearing a lap sash seat belt, we are of the view that this does not extend to wearing it in a manner which is not in conformity with its basic design. The fact that the seat belt is “fastened” is not determinative of whether it is “properly adjusted”. To take an extreme example, which might even be regarded as absurd, a person could not be said to have worn a seat belt “properly adjusted” if that person wrapped it around his ankles before fastening it.
It follows that the primary judge misconstrued the expression “properly adjusted” when he interpreted it in the manner that he did. It follows that, to the extent necessary to correct this error, the appeal must be allowed. The disposition of the appeal
As noted earlier, his Honour’s decision to quash the conviction was not challenged in the appeal to this Court. It follows that his Honour’s order to that effect would ordinarily stand.
It was submitted by Mr Refshauge that, notwithstanding the fact that there was no challenge to so much of his Honour’s judgment as involved the decision to quash the conviction, that order too should be set aside and there be substituted an order dismissing the charge on a different basis. Mr Refshauge submitted that, on a proper construction of r 264, the only conclusion open was that Mr Wojcicka had failed to wear a seat belt “properly adjusted”. He conceded, however, that for the reasons given by the primary judge the offence was of a “technical” or minor nature, and that it would be appropriate to order that the charge, though formally proved, be dismissed pursuant to s 402 of the Crimes Act 1900 (ACT). He submitted in the alternative that this Court should order that there be a new trial.
His Honour’s reasons for concluding that an order dismissing the charge under s 402 would have been appropriate are not entirely clear. On one view, he seems to have proceeded upon the basis that Mr Wojcicka had, but was not “carrying”, a medical certificate under s 267(3) at the time of driving. On the other hand, it is possible that he simply concluded that Mr Wojcicka’s subsequent production of two medical certificates showed that he had a perfectly legitimate reason for not having worn the sash across his chest.
Whichever interpretation of his Honour’s reasons be correct, Mr Refshauge frankly conceded that the appropriate disposition of this case would be an order dismissing the charge, not because it had not been proved but pursuant to s 402. This Court has the power, on appeal, to order that there be substituted either of the orders sought by Mr Refshauge. It also has the power to refuse to order a new trial, and there is much to be said for that outcome. Constable Moroney, has achieved his purpose in rectifying the error made by the primary judge regarding the meaning of the expression “properly adjusted” in r 264. The law has been clarified for future cases. There is little utility, in the present case, in ordering a new trial given that the outcome is almost certain to be a dismissal of the charge, albeit under s 402.
We would not normally regard those expedient considerations as warranting departure from the usual course of ordering a fresh hearing. However, there is another factor which requires consideration. The only evidence led against the respondent by the prosecution was that he was not wearing a seat belt at all. That evidence and that case was accepted by the Magistrate as the basis for the conviction. It is accepted that that decision was flawed. In our opinion, in the particular circumstances, the prosecution should not be given the opportunity of now presenting a different case.
We therefore do not propose to do more than affirm the orders of the Supreme Court setting aside the conviction, set aside that part of the orders that dismisses the charge, but expressly decline to order any rehearing or to return the proceeding to the Magistrates Court.
We note that on 6 February 2003, the primary judge ordered that Constable Moroney pay Mr Wojcicka’s costs of the appeal before him. We do not propose to disturb that order. Mr Wojcicka was entitled to succeed on that appeal because the error made by the Magistrate had to be corrected.
In relation to the costs of this appeal, Mr Refshauge accepted that even if Constable Moroney were successful, he should not be awarded costs. He submitted that there should be no order in relation to costs. We accept that submission. Accordingly, there will be no order for costs in relation to this appeal. I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Moroney v Wojcicka [2003] ACTCA 15

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