On 21 March 2024, Judge Anderson SC of the District Court decided that an E-bike used by Mr Paul Fortuna ("the Appellant") was not a "motor vehicle" for the purposes of Division 2 of Part 7.4 of the Road Transport Act 2013 ("RTA"). As a result of this, His Honour then concluded that the Appellant was not subject to a 24-month mandatory interlock order under s209(1)(f) for driving a vehicle under the influence of alcohol.
Background
On 7 September 2023 at approximately 10:45pm, the Appellant was riding an E-bike in the designated bike lane on the Sydney Harbour Bridge near Millers Point. He was observed to be swaying from side to side while riding the E-bike and eventually lost control of the bike approximately 80 metres from the bike lane exit onto Observatory Hill 1. The Appellant consequently slammed into the fencing of the Sydney Harbour Bridge and fell to the concrete, sustaining serious head injuries. A witness saw the Appellant lying on the ground and called an ambulance. The Appellant was taken to hospital. During his hospitalisation, a blood alcohol sample was taken from the Appellant which returned a high range blood alcohol reading 2.
The matter came before the Sydney Downing Centre Local Court on 6 March 2024 and Magistrate Julie Zaki found the Appellant guilty of driving a vehicle under the influence of alcohol. As a result of this finding, Magistrate Zaki imposed the following penalty on the Appellant:
- $600 fine; and
- Automatic mandatory licence disqualification for 6 months; and
- Mandatory interlock driver licence condition for 24 months which required the Appellant to complete a breath test prior to driving 3.
The appeal
The Appellant pleaded guilty to one charge under section 112(1)(a) of the Road Transport Act which states that "a person must not, while under the influence of alcohol or any other drug – drive a vehicle." While the Appellant accepted the $600 fine and the 6-month mandatory licence disqualification, the mandatory interlock driver licence condition was appealed 4.
Mandatory interlock offence
Mandatory Interlock Orders are imposed by courts upon conviction of certain drink driving and traffic offences.
Under section 209(f) of the Road Transport Act, mandatory interlock offences may be imposed in "alcohol related offences." An offence against s112(1)(a) is an "alcohol related offence" only where it involves driving a "motor vehicle" under the influence of alcohol 5.
The issue in this case was whether the Appellant's E-bike was a "motor vehicle". The Appellant argued that the E-bike could not be considered a motor vehicle and thus, the mandatory interlock driver licence condition for 24 months should not have been imposed.
Was the E-bike considered a motor vehicle?
Under section 4 of the Road Transport Act, a motor vehicle means "a vehicle that is built to be propelled by a motor that forms part of the vehicle."6
The Appellant, in arguing that his E-bike was not a motor vehicle, relied upon the Personal Injury Commission case of CFD v AAI Limited t/as AAMI [2023] ("CFD"). In this case, the Claimant's E-bike was determined not to be a motor vehicle despite there being a motor attached to the back wheel of the E-bike near the axle which was engaged by a throttle located on the right handle of the bike. There was also a battery under the seat 7. PIC Senior Member Williams came to this conclusion because there was no evidence to determine if these features were present at the time the vehicle was built or if modifications were made to the bike after being sold by the manufacturer 8.
Using the same reasoning as in CFD, Judge Anderson SC held that the Appellant's E-bike was not a motor vehicle. The E-bike had no throttle and, while there was a battery and motor forming part of the bike, the bike could not move without a human using the pedals 9. As the Appellant's pedalling was the primary source of power and there was no evidence to establish that the E-bike was built to be propelled by a motor, the Appellant's E-bike was not determined to be a motor vehicle.
Decision
As the E-bike was not considered a motor vehicle, Judge Anderson SC upheld the appeal and ruled that mandatory interlock provisions did not apply in this case. As a result, the $600 fine and 6-month mandatory licence was confirmed but the 24-month mandatory interlock driver licence condition was not imposed.
Key takeaways
This decision clarifies that when determining whether a vehicle such as an E-bike satisfies the definition of a "motor vehicle," there must be evidence which shows that the vehicle had been intended to be primarily propelled by a motor instead of by pedalling.
Footnotes
1 R v Fortuna [2024] NSWDC 325
("Fortuna"), [5].
2 See ibid
3 Ibid, [4].
4 Fortuna, [4].
5 Ibid, s209(f).
6 Ibid, s4.
7 CFD v AAI Limited t/as AAMI [2023] NSWPIC 592
("CFD"), [54].
8 See ibid.
9 Fortuna (n 1), [18].
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