WJJ -v- WA POLICE [2026] WASC 169

[2026] WASC 169 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : WJJ -v- WA POLICE [2026] WASC 169 CORAM : WHITBY J HEARD : 30 APRIL 2026 DELIVERED : 30 APRIL 2026 FILE NO/S : SJA 1004 of 2026 BETWEEN : WJJ Appellant AND WA POLICE Respondent ON APPEAL FROM: For File No : SJA 1004 of 2026 Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE R HUSTON File Number : KA 4121/2024 Catchwords: Appeal against conviction - Error of law and fact - Road Traffic Act 1974 (WA) - Meaning of 'drive' - To have control over the steering, movement or propulsion of the vehicle - Turns on own facts -- 1 of 10 -- [2026] WASC 169 Page 2 Legislation: Criminal Appeals Act 2004 (WA) Road Traffic Act 1974 (WA) Road Traffic (Administration) Act 2008 (WA) Result: Application for extension of time granted Appeal allowed Conviction set aside Judgment of acquittal entered Category: B Representation: Counsel: Appellant : R S Napper & D E Pawson Respondent : A N Kildea Solicitors: Appellant : Aboriginal Legal Service of Western Australia Respondent : State Solicitor for Western Australia Case(s) referred to in decision(s): Burchell v Goodall (1994) 20 MVR 391 Doyle v Harvey [1923] VLR 271 Edwards v Buck (1991) 4 WAR 150 Hart v Rankin [1979] WAR 144 R v MacDonagh [1974] QB 488; [1974] 2 WLR 529 Robinson v The Queen (1991) 56 A Crim R 133 Samuels v The State of Western Australia [2005] WASCA 193 Wimbridge v The State of Western Australia [2009] WASCA 196 -- 2 of 10 -- [2026] WASC 169 WHITBY J Page 3 WHITBY J: (This judgment was delivered extemporaneously on 30 April 2026 and has been edited from the transcript.) Overview 1 On the 15 October 2025 in the Kalgoorlie Magistrates Court, WJJ (the appellant) was convicted after trial of one count of driving a motor vehicle on a road without authorisation (that is, whilst disqualified from holding a licence), contrary to s 49(1)(a) and s 3(b) of the Road Traffic Act 1974 (WA) (RTA). This was charge KA 4121/2024. The appellant was fined $1,000 and ordered to pay costs of $300.50. The appellant was also disqualified from driving for nine months. 2 The undisputed facts of the alleged offending are as follows. On 3 September 2024 the appellant was approached by police conducting traffic stops on Lane Street in Boulder.1 The appellant was sitting in the driver's seat of a stationary vehicle with the keys in the accessory position (that is, the engine was off).2 The police officers did not observe the vehicle moving at any time. The appellant provided his details to the police officers who subsequently determined that the appellant's driver's licence had been suspended due to demerit point disqualification.3 3 For the reasons that follow, I grant an extension of time to commence the appeal, grant leave to appeal and allow the appeal. I find that the learned magistrate made an error of fact and law in finding that the appellant was 'driving' whilst disqualified within the meaning of the RTA, and this resulted in a substantial miscarriage of justice. The appeal 4 On 9 January 2026 the appellant filed an appeal notice seeking leave to appeal the conviction. 5 The single ground of appeal was that the learned magistrate erred in both law and fact by finding that the appellant drove a motor vehicle contrary to s 49 of the RTA. The ground was particularised by the appellant in the following terms: 1 ts 6 (13 June 2025). 2 ts 8, 13, 25 (13 June 2025). 3 ts 12 (13 June 2025). -- 3 of 10 -- [2026] WASC 169 WHITBY J Page 4 (1) the term 'drive' includes 'to have control over the steering, movement or propulsion of a vehicle (s 4 of the Road Traffic (Administration) Act 2008 (WA) (RTAA)). (2) the learned magistrate found that to 'have control over the steering, movement or propulsion of the vehicle' includes a capacity to control and is not limited to 'the moment of interaction to be doing those things'. (3) Contrary to the learned magistrate's finding, the phrase 'to have control over' is confined to the physical act of operating a vehicle's steering, movement or propulsion. 6 The respondent concedes the learned magistrate made an error of law and fact by finding the appellant had been 'driving' a vehicle and that this resulted in a substantial miscarriage of justice.4 Legal principles relevant to the appeal 7 This is an appeal under the Criminal Appeals Act 2004 (WA) pt 2 (CA Act). 8 Section 7(1) of the CA Act provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against that decision. A 'decision' of a court of summary jurisdiction includes a decision to convict an accused of a charge.5 9 Section 8(1) of the CA Act sets out the grounds upon which an appeal under 7 is made. An appeal may be made on the ground that the court of summary jurisdiction made an error of law or fact, or of both law and fact, or that there has been a miscarriage of justice. 10 In this instance, by a single ground of appeal, the appellant contends the learned magistrate made an error of both law and fact.6 11 The appellant must obtain leave to appeal.7 If leave to appeal is not granted, the appeal is taken to have been dismissed.8 The court 4 Respondent's Outline of Submissions dated 9 April 2026 [6]. 5 CA Act s 6(c). 6 Notice of Appeal filed 9 January 2026. 7 CA Act s 9(1). 8 CA Act s 9(3). -- 4 of 10 -- [2026] WASC 169 WHITBY J Page 5 must not grant leave to appeal on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.9 12 Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.10 13 In accordance with s 39(1) of the CA Act, the appeal court must decide the appeal on the evidence and material that was before the lower court. However, s 39(1) does not affect this court's power as contained in s 40(1)(e) of the CA Act to 'admit any other evidence' for the purposes of dealing with an appeal.11 14 The appeal must be commenced within 28 days of the decision of the court of summary jurisdiction unless the Supreme Court orders otherwise.12 The appellant filed the notice of appeal in this case on 9 January 2026, approximately 11 weeks after the conviction was entered and seven weeks out of time. The appellant therefore requires an extension of time within which to appeal. 15 In determining the appeal, I may:13 (1) allow the appeal, set aside the decision of the learned magistrate and substitute a decision that should have been made; or (2) dismiss the appeal, even if I decide a ground of appeal in favour of the appellant, if I consider that no substantial miscarriage of justice has occurred. Extension of time within which to appeal 16 In Wimbridge v The State of Western Australia, Buss JA said the factors to be considered in deciding whether to exercise the discretion to extend time included:14 First, the nature and extent of the delay. Secondly, the reasons for the delay. Thirdly, the proposed grounds of appeal and their merit. Fourthly, the prejudice to the applicant if an extension of time is not granted. Fifthly, the prejudice (if any) to the State or the Crown if an extension of time is granted. These factors are not intended to be an 9 Samuels v The State of Western Australia [2005] WASCA 193. 10 CA Act s 14(2). 11 CA Act s 39(3). 12 CA Act s 10(3). 13 CA Act s 14(1) and (2). 14 Wimbridge v The State of Western Australia [2009] WASCA 196 [45]. -- 5 of 10 -- [2026] WASC 169 WHITBY J Page 6 exhaustive statement of the relevant considerations. No doubt, in a particular case, there may be additional factors. 17 The appellant applies for an extension of time to appeal and relies upon the affidavit of Ricardo Simeon Napper, a solicitor for the Aboriginal Legal Service of Western Australia (ALSWA), affirmed on 9 January 2026 in support of the application. 18 On 10 February 2026, her Honour Justice Forrester ordered that the application for an extension of time be heard together with the leave to appeal and appeal application.15 19 Mr Napper deposes that he received an email from the appellant's trial counsel on 17 October 2025 requesting his consideration on prospects for an appeal against conviction. ALSWA has a policy of only granting aid in appeal matters following an assessment that the matter presents a ground of appeal with a reasonable prospect of success. Mr Napper deposes that he is the sole practitioner at ALSWA working on appeals and had to balance assessment of this matter with other court commitments and ongoing appeals. Mr Napper requested he be provided with a memorandum from the appellant's trial counsel and the trial transcript. There was some delay in obtaining the trial transcript, which was not available to Mr Napper until late November 2025. 20 Mr Napper further deposes that in early December 2025, after considering the memorandum and transcript, outside counsel was briefed to provide a legal opinion on the merits of an appeal. This was provided to ALSWA on 19 December, during which time the ALSWA offices were closed for the Christmas period. Upon returning to the office on 7 January 2026, Mr Napper considered the opinion of counsel and drafted and filed the appeal notice on 9 January 2026. 21 Having regard to the explanation for the delay in filing the appeal notice, I am satisfied that the delay was not unreasonable. Further, the respondent does not oppose a grant of leave to appeal out of time,16 and the respondent concedes the appellant's appeal has merit.17 22 I therefore consider it appropriate to grant the application for extension of time within which to appeal. 15 Orders of the honourable Justice Forrester dated 10 February 2026. 16 Respondent's Outline of Submissions dated 9 April 2026 [45]. 17 Respondent's Outline of Submissions dated 9 April 2026 [6]. -- 6 of 10 -- [2026] WASC 169 WHITBY J Page 7 The findings at trial 23 It is not in dispute that the learned magistrate found that, at the time of the alleged offence, the appellant was sitting in the driver's seat of a stationary vehicle with the keys in the ignition turned to the accessory mode, with the car engine off.18 24 The Magistrate convicted the appellant on the basis that:19 (a) the meaning of 'drive' for the purposes of s 49(1)(a) of the RTA, includes having 'control' over the steering, movement or propulsion of the vehicle; and (b) a person does not need to be engaged in steering, moving or propelling the vehicle to have control over the steering, movement or propulsion of the vehicle; (c) 'control' over the steering, movement or propulsion of the vehicle) equated to having 'power' over the steering, movement or propulsion of the vehicle; and (d) the appellant had 'control' over the steering of the vehicle by reason of his position in the driver's seat and his proximity to the steering wheel. Disposition 25 Section 49(1)(a) of the RTA provides: (1) A person who— (a) drives a motor vehicle on a road while not authorised under the Road Traffic (Authorisation to Drive) Act 2008 Part 2 to do so … commits an offence. 26 The term 'drive' is not defined in the RTA. Pursuant to s 5 of the RTA, RTAA pt 1 div 2 provides the meanings of some terms in the RTA. Section 4 of the RTAA provides the term 'drive' includes: … in relation to a vehicle, to have control over the steering, movement or propulsion of the vehicle 18 ts 27 - 28 (15 October 2025). 19 ts 28 (15 October 2025). -- 7 of 10 -- [2026] WASC 169 WHITBY J Page 8 27 Section 49(1)(a) of the RTA, read with s 4 of the RTAA, indicates that while 'drive' includes having control over the steering, movement or propulsion of a vehicle, it is not an exhaustive definition of what it means to drive a vehicle. 28 Therefore, the issue that arises in the appeal is whether a person sitting in the driver's seat of a vehicle, which is stationery with the keys in the accessory position and the engine off, has 'control over the steering movement and propulsion' of the vehicle, or is otherwise 'driving' the vehicle for the purposes of s 49(1)(a) of the RTA. 29 I note that the phrase 'steering, movement or propulsion' is disjunctive - meaning the person only has to have control over one of the three activities (the steering, movement or propulsion of the vehicle) to be 'driving' a vehicle. 30 I was referred by the parties to several cases in which a person was or was not found to be driving a vehicle: (a) in R v MacDonagh,20 the court described driving as 'the use of the driver's controls to direct [a vehicle's] movement' giving the example of a person sitting in the driver's seat while others push the vehicle as constituted driving. (b) in Hart v Rankin,21 Burt CJ held that was a person was driving a vehicle if they could be said to be in control of the vehicle. In that case, steering and occasionally braking a towed vehicle was held to be driving the vehicle because those acts controlled the vehicle's course and speed. (d) in Edwards v Buck,22 a person pushing and steering a vehicle from outside the vehicle was not driving the vehicle because that action was not considered as falling within the ordinary meaning of 'driving' under s 49(1) of the RTA; (e) in Burchell v Goodall,23 a person was found to be 'in control' of a vehicle once they had entered the vehicle, turned on the engine and formed the intention to drive; 20 R v MacDonagh [1974] QB 488; [1974] 2 WLR 529. 21 Hart v Rankin [1979] WAR 144. 22 Edwards v Buck (1991) 4 WAR 150. 23 Burchell v Goodall (1994) 20 MVR 391. -- 8 of 10 -- [2026] WASC 169 WHITBY J Page 9 (f) in Robinson v The Queen,24 in the context of dangerous driving, the court held that a person ceased 'driving' his truck when it stopped moving. Murray J stated that driving 'at least encompasses a situation in which control of the vehicle is being exercised'. Wallwork J observed that a person stopped at traffic lights with the engine running or stopped in a queue of traffic could be 'driving'; (g) in Doyle v Harvey,25 MacFarlane J held that a person could be driving even when a vehicle was not in motion and gave the example of when a vehicle was paused in traffic. 31 What is clear from each of these cases is that whether someone is 'driving' a vehicle is a fact specific determination. 32 The ordinary meaning of the word 'drive' according to the Oxford English Dictionary is 'to operate and control the direction and speed of a motor vehicle'. In my view, having regard to that ordinary meaning, in order to 'drive' a vehicle, either: (a) the engine must be on and the person be in a position to steer or move the vehicle; or (b) the vehicle must be moving and the person must be in position to steer the vehicle. 33 In this case, the vehicle was off and stationary, that is the vehicle was not moving. Therefore, the appellant was not driving the vehicle. The learned magistrate erred in law and in fact in finding that he was and this resulted in a substantial miscarriage of justice. Conclusion 34 I make the following orders: 1. The appellant's application for an extension of time within which to appeal is granted. 2. Leave to appeal is granted. 3. The appeal is allowed. 24 Robinson v The Queen (1991) 56 A Crim R 133. 25 Doyle v Harvey [1923] VLR 271. -- 9 of 10 -- [2026] WASC 169 WHITBY J Page 10 4. The conviction and sentence imposed by Magistrate Huston on 15 October 2025 for the offence the subject of charge KA 4121/2024 be set aside and a judgment of acquittal is entered. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CS Associate to the Hon Justice Whitby 1 MAY 2026 -- 10 of 10 --