Adam Saliba v Wissam Aziz
[2013] ACTCA 41
•30 October 2013
ADAM SALIBA v WISSAM AZIZ
[2013] ACTCA 41 (30 October 2013)
STATUTORY INTERPRETATION – pro tanto repeal – implied repeal – where two statutes provide different penalties for an offence with the same elements – Hoffman v Chief of Army (2004) 137 FCR 520 applied
Crimes Act 1900 (ACT), ss 99, 99A
Defence Force Discipline Act 1982 (Cth), s 61
Road Transport (Driver Licensing) Act 1999 (ACT), ss 32, 32(2), 32(2)(a)
Road Transport (General) Act 1999 (ACT), div 4.2, ss 61A, 61B, 61C
Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Deputy Commissioner of Taxation v Brown (1958) 100 CLR 32
Downey v Trans Waste Pty Ltd (1991) 172 CLR 167
Elias v R; Issa v R [2013] HCA 31
Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100
Health Insurance Commission v Peverill (1994) 179 CLR 226
Hoffman v Chief of Army (2004) 137 FCR 520
Josephson v Walker (1914) 18 CLR 691
Lawson v Gault (2002) 125 FCR 1
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Maxwell v R (1996) 184 CLR 501
Pasmore v Oswaldtwistle Urban District Council [1898] AC 387
Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1
Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation (No 2) (1980) 44 FLR 455
Reynolds v McTernan [2012] ACTMC 7
Saraswati v R (1991) 172 CLR 1
Smith v The Queen (1994) 181 CLR 338
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 8 of 2013
No. SCA 105 of 2011
Judges: Penfold, Burns and Buchanan JJ
Court of Appeal of the Australian Capital Territory
Date: 30 October 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 8 of 2013
) No. SCA 105 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:ADAM SALIBA
Appellant
AND:WISSAM AZIZ
Respondent
ORDER
Judges: Penfold, Burns and Buchanan JJ
Date: 30 October 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal is dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 8 of 2013
) No. SCA 105 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:ADAM SALIBA
Appellant
AND:WISSAM AZIZ
Respondent
Judges: Penfold, Burns and Buchanan JJ
Date: 30 October 2013
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
Background
It is very common for conduct which constitutes a criminal offence in its own right to also represent an element (perhaps even a substantial element) in a more serious criminal offence. It is less orthodox for exactly the same conduct to constitute separate criminal offences of a differing severity for which there are significantly different penalties, leaving it only to the discretion of prosecuting authorities to decide which offence to charge.
Section 32(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) (“the Driver Licensing Act”) makes it an offence for a person whose driver licence (whether an ACT licence or other Australian licence) is suspended to drive in the ACT during the period of suspension. In the case of a holder of an ACT driver licence, conviction carries an automatic disqualification of at least 12 months.
On 1 December 2010, the Road Transport (General) Act 1999 (ACT) (“the Road Transport Act”) was amended by the insertion of a new Division 4.2. That new division made provision for the issue of an “immediate suspension notice” for specified offences, including driving with specified blood alcohol levels. In the case of a person holding an ACT driver licence, the driver licence was thereupon suspended. In the case of a person holding an interstate or external driver licence, the right to drive a vehicle in the ACT using that licence was suspended. Section 61C of the Road Transport Act, which appeared in the new division, made it an offence to drive a vehicle during the currency of an immediate suspension notice.
On 24 February 2011, the respondent was issued with an immediate suspension notice. On 18 May 2011, the respondent was seen by police to be driving a vehicle. He was arrested and charged as a result. He was not charged under s 61C of the Road Transport Act with driving while an immediate suspension notice was in effect. If he had been, the maximum penalty was $2,200. The respondent was charged under s 32(2)(a) of the Driver Licensing Act. The maximum penalty was $5,500 and, as earlier indicated, since the respondent is the holder of an ACT driver licence, conviction is accompanied by an automatic suspension from driving for at least 12 months.
The respondent was convicted, fined $1,000 with court costs of $65 and a criminal injuries compensation levy of $50. By operation of the Driver Licensing Act, he was automatically disqualified from holding a driver licence for 12 months.
The respondent appealed to the Supreme Court. On the appeal, Refshauge J held that the provisions and operation of s 32 of the Driver Licensing Act had been impliedly repealed to the extent of the operation of s 61C of the Road Transport Act. The conviction and sentence imposed on the respondent on 14 November 2011 were set aside. As a result, the automatic suspension of his ACT driver licence was lifted.
The appellant was the informant before the Magistrates Court. The present appeal in the name of the appellant is prosecuted by the Director of Public Prosecutions for the Australian Capital Territory (“the DPP”).
The statutory provisions
The relevant terms of s 32 of the Driver Licensing Act are as follows:
32 Offences committed by disqualified drivers etc
…
(2)A person whose Australian driver licence is suspended by a court in Australia or under the law of any jurisdiction must not—
(a)drive a motor vehicle on a road or road related area during the period of suspension except in accordance with a restricted licence issued to the person; or
(b)apply for a driver licence during the period of suspension and in, or in relation to, the application omit to mention the suspension.
Maximum penalty:
(a)for a first offender—50 penalty units, imprisonment for 6 months or both; or
(b)for a repeat offender—100 penalty units, imprisonment for 1 year or both.
…
(5)If a court convicts a person of an offence against subsection (1) or (3), the person is automatically disqualified from holding or obtaining a driver licence—
(a)for a first offender—for 12 months or, if the court orders a longer period, the longer period; or
(b)for a repeat offender—for 24 months or, if the court orders a longer period, the longer period.
…
The relevant terms of ss 61B and 61C of the Road Transport Act are as follows:
61B Immediate suspension of licence
(1)If a police officer believes on reasonable grounds that a person has committed an immediate suspension offence, the police officer must give the person an immediate suspension notice for the offence.
…
(3)A suspension notice takes effect as soon as it is served on the person.
(4)The following provisions apply if a person is served with a suspension notice:
(a)if the person is the holder of a driver licence—the person’s licence is suspended;
(b)if the person is the holder of an interstate driver licence or an external driver licence—the person’s right to drive in the ACT is suspended;
(c)the person must surrender to a police officer the person’s driver licence or, if the person is unable to do so at the time, the person must surrender the licence as soon as practicable in accordance with the requirements of the suspension notice;
(d)if the person is the holder of a driver licence—the person must not drive a vehicle;
(e)if the person is the holder of an interstate driver licence or an external driver licence—the person must not drive a vehicle in the ACT;
(f)the person is not entitled to apply for, or be issued with, a restricted licence during the suspension period.
(5)A suspension notice ceases to have effect if—
(a)the Magistrates Court orders a stay of the notice; or
(b)the proceeding for the suspension offence for which the notice was issued is withdrawn or discontinued; or
(c)the suspension offence for which the notice was issued is found proved, dismissed or taken into account by a court; or
(d)90 days have elapsed since the day the notice was served and an event mentioned in paragraph (a), (b) or (c) has not happened in relation to the notice.
…
61C Drive while suspension notice in effect
(1)A person commits an offence if—
(a)the person has been served with an immediate suspension notice; and
(b)the notice has not ceased to have effect; and
(c)the person contravenes section 61B (4) (d) or section 61B (4) (e), whichever applies.
Maximum penalty: 20 penalty units.
(2)An offence against this section is a strict liability offence.
Reasoning of the primary judge
In his reasons for judgment, Refshauge J made the following observations (at [64]-[67]):
The original Bill had no sanction provision such as s 61C. It would appear, though, no reference was made to it, that a breach of the notice would be punishable under s 32 of the Driver Licensing Act.
Section 61B was also in different terms and it obviously became apparent between the presentation of the Bill on 28 October 2010 and the debate on it on 18 November 2010, that the provision did not apply to drivers from interstate who did not hold an ACT licence but who, of course, were permitted to drive here by virtue of any licence they held from a State or other Territory (“interstate drivers”).
Thus, amendments were made and there included the insertion of provisions s 61B(4)(b) and (e) to apply to interstate drivers and amendments to what became s 61B(4)(a) and (d) to limit to persons holding ACT licences. The amendments also inserted s 61C. They did not amend s 32 of the Driver Licensing Act.
Section 61C was thus introduced as a component of div 4.2 of the General Act which made provision for the issuing of immediate suspension notices but also, in the same Division, for relevant sanctions, including s 61C. It is a specific provision for a specific circumstance.
Refshauge J also made the following further observations (at [83]-[84]):
The difference in penalties is significant. …
A conviction of an offence against s 32 brings a mandatory suspension of licence for at least 12 months. A conviction of an offence against s 61C may result in no disqualification at all, unless the Court imposes one under s 64 of the General Act, and then there is a complete discretion as to the length of the disqualification. …
Refshauge J’s conclusions were set out in the following terms (at [89]-[91] and [93]):
I accept that an implied repeal should not lightly be concluded by the courts as the response to inconsistency in statutory provisions. I accept, also, that the legislative intention should be clear before having such a conclusion.
That intention will, of course, rarely be express. Indeed, as Kitto, Taylor and Owen JJ observed in Rose v Hvric (1963) 108 CLR 353 at 360, “[e]x hypothesis there is no negation in words, but there must be a negation as a matter of meaning”.
It seems to me quite clear that the intention of the legislature was to provide s 61C of the General Act for prosecution of breaches of immediate suspension notices and that s 32(2) of the Driver Licensing Act was repealed to that extent. It may be more properly expressed that the general provision, s 32(2) of the Driver Licensing Act, gives way to the specific provision in s 61C of the General Act. Whichever way it is expressed, I consider that s 32(2) is not an offence available for the offence for which the appellant was charged.
…
Section 32 of the Driver Licensing Act does not apply to the breach of a suspension of person’s right to drive contrary to an immediate suspension notice.
The focus of the present appeal is on the finding of the primary judge that s 32(2) of the Driver Licensing Act was repealed “pro tanto” by s 61C of the Road Transport Act or, as it was expressed in [91], to the extent of the operation of the latter provision.
Secondary criticisms of the primary judge
Although the primary focus of the present appeal concerns whether the primary judge was correct to conclude that there had been an implied repeal of the operation of s 32(2) of the Driver Licensing Act, criticism of the primary judge was not confined to that issue.
First, there were some suggestions in the written submissions for the DPP that the primary judge had misunderstood, or inappropriately employed, the notion of pro tanto repeal, although the point was not developed orally. In our view, the submission was misplaced and inaccurate. The concept is not a novel one and we see no novelty at any conceptual level in the approach taken by the primary judge. Whether his analysis should be upheld is a different question.
Secondly, at one point in the submissions for the DPP it was suggested that “his Honour’s judgment is rather discursive, reflecting perhaps the fact that the arguments that were developed by counsel were not the arguments that ultimately found favour with his Honour”. Again, the point (if there was one) was not developed orally but the implication of a lack of fairness should not pass without attention.
During the proceedings before Magistrate Lalor, Mr Sharman, who appeared for the respondent, argued as a preliminary matter that laying a charge under s 32 of the Driver Licensing Act was an abuse of process in light of the fact that it was open to proceed under s 61C of the Road Transport Act for the specific offence created by the legislature of driving during the currency of an immediate suspension notice. The submission was bolstered by the argument that it was wrong to expose the respondent to a greater level of potential punishment (automatic disqualification) than would normally arise under the specific regime. The submission was rejected and the trial proceeded. At the appeal, Mr Sharman put the argument to Refshauge J with (so far as the transcript reveals) little apparent effect. Indeed, his Honour taxed Mr Sharman and counsel for another appellant with the fact that normally a choice of charge is a matter for the prosecution (see Maxwell v R (1996) 184 CLR 501).
However, during submissions for the present appellant about that same issue, his Honour raised the question of the effect of the judgment of the High Court in Saraswati v R (1991) 172 CLR 1 (“Saraswati”) and of the Full Federal Court in Hoffman v Chief of Army (2004) 137 FCR 520 (“Hoffman”) (to which cases we will refer shortly). Counsel for the present appellant sought and was granted leave to file some further written submissions about the issue. That opportunity was not taken up in accordance with the leave then granted. In his judgment, Refshauge J recorded the following (at [19]):
At the hearing, I raised a number of issues with counsel and Mr Jackson sought an opportunity to make additional written submissions. I directed that any such submissions should be filed and served by 2 October 2012 and that Mr Aziz could file written submissions in reply by 9 October 2012. No such submissions were filed within those dates. Subsequent submissions were filed, but no leave was sought to do so, nor was an extension of time sought to that end. I have no regard to the submissions.
In the circumstances, there is no significance in any complaint (much less in a gratuitous observation) suggesting that the point on which the case ultimately turned was one which was not developed by counsel.
The principal issue on the appeal
The primary judge accepted that the doctrine of implied repeal which he invoked was one to be used sparingly and with caution.
His Honour at [50] quoted from the judgment of Gaudron J in Saraswati (at 17) as follows:
It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v Attorney-General (Vict) [sic] [(1961) 106 CLR 268 at 276], per Fullagar J, and [at 290] per Windeyer J.
At [58]-[60], Refshauge J said the following:
More recently, the Full Court of the Federal Court of Australia summarised the principles in McNeill v The Queen (2008) 168 FCR 198 at 210; [63] where the Court said:
Where an enactment is not expressly repealed by a later enactment, the previous enactment will nonetheless be impliedly repealed where the later enactment is so inconsistent with the previous enactment that the two enactments cannot stand together. The language of the later enactment must be such that the previous enactment is repealed by necessary implication: Goodwin v Phillips (1908) 7 CLR 1 at 10 per Barton J. There is a presumption that the legislature intends both enactments to operate in their terms. The implied repeal of an enactment is a ‘comparatively rare phenomenon’: Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 275 per Fullagar J; Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 at 14.
Their Honours then cited part of the passage from the judgment of Gaudron J in Saraswati v The Queen to which I have referred to above (at [50]), and also referred to Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130.
The principle of implied repeal has been applied in relation to different Acts in this Territory in McIntosh v Webster (1980) 30 ACTR 19 at 29, when the Court held that the amendment of s 8A of the Crimes Act 1914 (Cth) in 1960 had impliedly repealed s 18(e) of the Police Ordinance 1927 (ACT). The Court accepted that the “doctrine of implied repeal is not one favoured by the courts”. The Court noted that the general “approach will be to see whether the two provisions can operate together”.
It is apparent from the judgment under appeal that Refshauge J found that the “very strong grounds” to support the implication upon which he relied did exist. There is therefore no question in the present case of his Honour applying incorrect principles to the assessment of the question before him. The question ultimately is whether those correct principles were correctly applied. To examine that question it is appropriate, in our view, to undertake again the comparison and analysis which his Honour made, applying the same general principles of which his Honour was conscious.
In Saraswati, McHugh J referred (at 23) to:
… the rule that, when a statute specifically deals with a matter and makes it the subject of a condition or limitation, it excludes the right to use a general provision in the same statute to avoid that condition or limitation.
The rule to which McHugh J referred is a well known rule of statutory construction which is applied to resolve an inconsistency within the same statute (see Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 (“Anthony Hordern”) at 7-8; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678; Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation (No 2) (1980) 44 FLR 455 at 468-469; Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 at 171-172; David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 275-276).
The principle also applies for statutes creating criminal offences. Saraswati is an example.
The principle is not confined to the resolution of conflict within the same statute (Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1 at 29-30; Smith v The Queen (1994) 181 CLR 338 at 348).
Another principle of statutory construction which is relevant to note is that where a legislature creates a new entitlement (or corresponding obligation) and at the same time provides a special statutory means of enforcement, it is presumed that the remedy so provided is an exclusive one (Pasmore v Oswaldtwistle Urban District Council [1898] AC 387 at 394-395; Josephson v Walker (1914) 18 CLR 691 at 697, 701; Deputy Commissioner of Taxation v Brown (1958) 100 CLR 32 at 42; Health Insurance Commission v Peverill (1994) 179 CLR 226 at 242-243; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 455-456).
In Hoffman, Black CJ, Wilcox and Gyles JJ said (at [10]):
The question of inconsistency and the related question of double jeopardy have often been discussed in relation to similar offences created by different statutes (eg, Butler v Attorney-General (Vic) (1961) 106 CLR 268; Rose v Hvric (1963) 108 CLR 353; Parramatta City Council v Stauffer Chemical Co (Australia) Pty Ltd [1971] 2 NSWLR 500; Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502). Sometimes the statutes are of different legislatures, giving rise to a constitutional question (eg, Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466; Hume v Palmer (1926) 38 CLR 441; Ex parte McLean (1930) 43 CLR 472; R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338; R v Winneke; Ex parte Gallagher (1982) 152 CLR 211). Even in such circumstances, the provision for a different penalty for the same act in different statutes is regarded as inconsistent, unless there is a relevant point of distinction (see Isaacs J in Clyde Engineering v Cowburn at 489; Starke J in Hume v Palmer at 462; Mason J in Ex parte Blacklock at 347; and Gleeson CJ in Environment Protection Authority v Australian Iron & Steel Pty Ltd at 507G-508B).
(see also per Lindgren J at [214]-[223]).
Hoffman concerned a charge of common assault under s 61 of the Defence Force Discipline Act 1982 (Cth). Black CJ, Wilcox and Gyles JJ pointed out (at [7]), after setting out the charge:
… That is the manner in which a charge pursuant to s 33(a) of the Discipline Act would have been framed. The elements of the charged offence were identical to the elements of a charge, in respect of the same conduct, that might have been laid under s 33(a). However, there are two important differences between the charge as laid and any charge that might have been brought under s 33(a). First, the maximum penalty for breach of s 33 is six months’ imprisonment whereas the maximum penalty for breach of s 61 is two years’ imprisonment. Second, a charge pursuant to s 33 would have been time barred if laid at the time when the s 61 charge was brought.
There is, in our respectful view, a reasonably close parallel between Hoffman and the present case so far at least as it concerns the fixation of different maximum penalties in respect of the same conduct.
Their Honours went on to say (at [11]):
Providing two different penalties for an offence with the same elements in two sections of the same statute gives rise to a question of construction that cannot be resolved otherwise than by choosing one section over the other. It is hardly likely that the legislature intended to allow the same conduct to be treated differently, where there is no relevant aggravating or distinguishing circumstance, dependent upon the whim of the prosecuting authority. Such a result would be capricious and arbitrary. … It is, of course, commonplace that the one act or course of conduct might lead to a variety of offences created by the same statute. However, those offences would all be different in character, one from the other, usually with an ascending order of gravity.
(citation omitted)
and, after referring to Saraswati (at [27]):
In the present statute the existence of the time limitation in relation to s 33 is an indicator that the legislature would not have contemplated that the same offence in substance could be pursued outside the prescribed limitation period. This provides independent support for the conclusion that the s 61 charge was not open that would anyway be indicated by the existence of different maximum penalties for the same conduct. …
(emphasis added)
In our respectful view, the reasoning in Hoffman is therefore directly applicable to the present case. It is not a relevant point of distinction that in Hoffman the offences appeared in the same statute rather than, as in the present case, in two statutes of the same legislature dealing with the same conduct – i.e. driving while an ACT driver licence was suspended.
In the present case, the enactment of ss 61A, 61B and 61C of the Road Transport Act in 2010 operated to create a new statutory offence of driving in the ACT in contravention of an immediate suspension notice. In the case of an ACT driver licence holder, the issue of the immediate suspension notice operated to suspend the ACT driver licence. In the case of an interstate or overseas driver licence holder, the issue of an immediate suspension notice operated to suspend any right or permission to drive on ACT roads, but the offence created was the same in both cases, and was punishable by the same penalty.
The case for the appellant is that an ACT driver licence holder (but not an interstate or overseas driver licence holder) is also exposed, at the discretion of the DPP, to the operation of s 32(2) of the Driver Licensing Act, with its more severe, and in part automatic, penalties than those which apply under s 61C of the Road Transport Act for committing a breach of s 61B(4). In our view, that contention should not be accepted. Indeed, the circumstances to which we have referred made it more likely than unlikely that all drivers who breached an immediate suspension notice were intended to be exposed to the same penalty for that conduct.
In Reynolds v McTernan [2012] ACTMC 7, Magistrate Mossop (as he then was) came to a different view about the interaction between s 61C of the Road Transport Act and s 32(2) of the Driver Licensing Act. His Honour referred to the principle in Anthony Hordern and noted the possibility (at [16]) that:
… s 61C might give rise to an implication that it was intended to cover the field in relation to driving contrary to the terms of an immediate suspension notice …
However, his Honour thought that the legislative history did not support such an implication and that s 61C did not impose any limitation or condition which was avoided by bringing a charge under s 32 of the Driver Licensing Act. In our respectful view, s 61C of the Road Transport Act does impose such a limitation or condition. It may be seen in the maximum penalty prescribed by that section. In the decision under appeal, the primary judge said (at [92]):
I am aware that in coming to this decision I am in disagreement with a recent decision by Magistrate Mossop in Reynolds v McTernan [2012] ACTMC 7. With the greatest of respect to his Honour, I am not persuaded that the legislature intended that both provisions stand and that ACT drivers be mandatorily exposed to an inevitably more severe penalty than those drivers in the ACT who do not hold an ACT licence. In my view, the legislative history, the purpose of the legislation and a careful analysis of the provisions requires otherwise.
It will be apparent from what we have said that we prefer the analysis of the primary judge.
On the appeal, the appellant relied on the judgment of the Full Federal Court in Lawson v Gault (2002) 125 FCR 1 and the judgments of the High Court in Maxwell v R (1996) 184 CLR 501 and Elias v R; Issa v R [2013] HCA 31. In our opinion, none of those judgments assist the appellant.
Elias v R did not concern a question of the kind which arose on the present appeal. It concerned the exercise of the discretion of a sentencing judge where a prosecuting authority had validly chosen a more serious charge over a lesser one. Reliance on Elias v R assumes, rather than establishes, that two separate charges were available in the present case.
Maxwell v R concerned the question of whether a judge might reject a plea of guilty to a lesser offence than charged (in that case manslaughter rather than murder). It does not, in our view, bear upon the present issue.
Lawson v Gault upheld the discretion of a prosecuting authority to proceed by way of indictment, rather than summarily, for stealing. Section 99 of the Crimes Act 1900 (ACT) provided for ten years imprisonment for conviction upon indictment for stealing. Section 99A provided that conviction on a charge of stealing no more than $1000 was punishable by six months imprisonment. That offence was triable summarily. In each case, the penalties to which we have referred were maximum penalties. The Full Court said (at [21]):
… The question is whether the amendment was intended to vary the meaning of s 99 so as to exclude from its operation, theft of property, the value of which did not exceed $1,000. It is difficult to see why such an intention should be inferred. No great inconvenience would flow from the fact that the same conduct might, in certain circumstances, be prosecuted summarily or on indictment at the election of the prosecuting authority. In s 477 the value of the relevant property was already used as a criterion for summary prosecution before a magistrate, with consequential reductions in maximum penalties. However the defendant’s consent was necessary. The primary purpose of the amendment appears to have been to avoid jury trial where the amount of property in question was small.
and (at [23]):
… it is true that a decision by the prosecuting authority to follow one course rather than the other might potentially have significant consequences for the accused person. To the extent that a decision to prosecute on indictment might expose him or her to more substantial penalties, the discretion of the sentencing judge would be a sufficient safeguard against abuse.
The validity of the second observation may now be in doubt following the decision of the High Court earlier this year in Elias v R.
The distinction between indictable and summary offences is well established as a foundation for the prescription of different maximum penalties. In Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100, for example, Latham CJ said (at 120):
… many offences may be prosecuted either summarily or upon indictment; and, in the latter case, possible penalties are more severe. If they are prosecuted upon indictment, the accused has the right to a trial by jury. This is not the case if they are prosecuted summarily. It is for the Attorney-General or other law officer of the Crown to determine whether or not an indictment should be presented.
The fact that in the present case each offence is punishable summarily renders the reasoning in Lawson v Gault inapplicable to the present case. One further important point of distinction should also be noted. In the present case, only one group of offenders is exposed to s 32(2) of the General Act – i.e. ACT driver licence holders. That circumstance does not reflect any difference in conduct. The correct inference is that the legislature intended that offenders would be exposed to the same penalty for the same conduct.
The judgment in Lawson v Gault is not in conflict with the later judgment of the Full Federal Court in Hoffman, where the relevant principles of statutory construction were fully analysed. In our view, the analysis in Hoffman should be accepted and applied.
Conclusion
As a result, we have come to the view that the conclusions of the primary judge should be accepted, notwithstanding the caution with which courts should examine the question of implied statutory repeal, as was acknowledged by the primary judge.
In our view, the appeal should be dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 30 October 2013
Counsel for the Appellant: Mr J White
Solicitor for the Appellant: ACT Director of Public Prosecutions
Counsel for the Respondent: Mr J Sabharwal
Solicitor for the Respondent: Tim Sharman
Date of hearing: 31 July 2013
Date of judgment: 30 October 2013
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