Bowman v Wooler
[2016] WASC 409
•15 DECEMBER 2016
BOWMAN -v- WOOLER [2016] WASC 409
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 409 | |
| 15/12/2016 | |||
| Case No: | SJA:1061/2016 | 12 DECEMBER 2016 | |
| Coram: | BEECH J | 12/12/16 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal upheld | ||
| B | |||
| PDF Version |
| Parties: | THERESA CLARE BOWMAN ANTHONY DOUGLAS WOOLER |
Catchwords: | Criminal law and sentencing Whether conviction for offence under s 34 Road Traffic (Administration) Act 2008 (WA) engaged power to order motor vehicle licence disqualification under s 105 Sentencing Act 1995 (WA) |
Legislation: | Road Traffic (Administration) Act 2008 (WA), s 34 Sentencing Act 1995 (WA), s 105 |
Case References: | Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Certain Lloyd's Underwriters Subscribing to Contract No IHOOAAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 City of Kwinana v Lamont [2014] WASCA 112 Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 Director General of Department of Transport v McKenzie [2016] WASCA 147 Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209 Muir v Morton [1984] WAR 254 Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
ANTHONY DOUGLAS WOOLER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE G A BENN
File No : MI 6205 of 2016
Catchwords:
Criminal law and sentencing - Whether conviction for offence under s 34 Road Traffic (Administration) Act 2008 (WA) engaged power to order motor vehicle licence disqualification under s 105 Sentencing Act 1995 (WA)
Legislation:
Road Traffic (Administration) Act 2008 (WA), s 34
Sentencing Act 1995 (WA), s 105
Result:
Appeal upheld
Category: B
Representation:
Counsel:
Appellant : Mr M A Perrella
Respondent : Mr J F Bennett
Solicitors:
Appellant : Perrella Legal
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Certain Lloyd's Underwriters Subscribing to Contract No IHOOAAQS v Cross [2012] HCA 56; (2012) 248 CLR 378
City of Kwinana v Lamont [2014] WASCA 112
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Director General of Department of Transport v McKenzie [2016] WASCA 147
Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209
Muir v Morton [1984] WAR 254
Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249
- BEECH J:
Introduction
1 The appellant appealed against a magistrate's order that she be disqualified from holding or obtaining a driver's licence for a period of 6 months. That disqualification was imposed consequent upon her conviction of an offence of failing to give information requested by a police officer which may have led to the identification of the driver or person in charge of a vehicle at the time an offence occurred, contrary to s 34(2) of the Road Traffic (Administration) Act 2008 (WA) (the Administration Act).
2 The appellant contended that her conviction did not engage the power to impose a disqualification in respect of her driver's licence. At the hearing of the appeal, I upheld the appeal and set aside the order of disqualification, saying that I would give my reasons later. These are my reasons.
The charge and the proceedings before the magistrate
3 By a prosecution notice dated 8 June 2016, the appellant was charged that, on 24 May 2016 at Midland, she, 'being a responsible person for a vehicle … when requested by a police officer to give information which may lead to the identification of the driver or person in charge of the vehicle at the time an offence against any written law is alleged to have occurred of which driving or being in charge of the vehicle is an element, failed to give the information'.
4 The appellant lodged an endorsed plea of guilty to the charge.
5 On 27 July 2016, the learned magistrate recorded a judgment of conviction, imposed a fine in the amount of $800, and ordered that the appellant be disqualified from holding or obtaining a driver's licence for a period of 6 months from 3 August 2016.
6 On 18 August 2016, the magistrate heard an application for correction of sentence filed on behalf of the appellant. The appellant argued that the offence of which she was convicted did not enliven the learned magistrate's discretion to order disqualification under s 105(1) of the Sentencing Act 1995 (WA). The magistrate dismissed the application for correction of sentence, finding that the discretion was enlivened and that the sentence he had imposed was in accordance with the Sentencing Act.
Ground of appeal
7 The appellant appealed on the ground that the power to impose a disqualification under s 105 of the Sentencing Act did not arise because an offence under s 34(2) of the Administration Act is not an offence an element of which is the driving or use of a motor vehicle, and is not otherwise a motor vehicle offence within s 105(5) of the Sentencing Act. Consequently, the appellant contended that the learned magistrate had no power to impose an order disqualifying her from holding or obtaining a driver's licence.
Statutory provisions
8 Section 34(2) of the Administration Act provides as follows:
A responsible person for a vehicle commits an offence if -
(a) an offence under any written law is alleged to have occurred an element of which is driving or being in charge of the vehicle; and
(b) a police officer requests the responsible person to give information which may lead to the identification of the driver or person in charge of the vehicle at the time of the alleged offence; and
(c) the responsible person has, or could reasonably have ascertained, the information; and
(d) the responsible person fails to give the information.
9 Section 105 of the Sentencing Act provides, so far as is relevant, as follows:
(1) A court sentencing an offender for a motor vehicle offence may order that, for a term set by the court, the offender be disqualified from holding or obtaining a driver’s licence.
…
(5) In this section -
driver's licence has the same definition as in the Road Traffic (Administration) Act 2008 section 4;
motor vehicle has the same definition as in the Road Traffic (Administration) Act 2008 section 4;
motor vehicleoffence means -
(a) an offence an element of which is the driving or use of a motor vehicle;
(b) stealing or attempting to steal or conspiring to steal a motor vehicle;
(c) receiving or attempting to receive or conspiring to receive a motor vehicle;
(ca) an offence where -
(i) a motor vehicle is used in the commission of the offence;
(ii) the commission of the offence is aided or facilitated by the use of a motor vehicle;
(d) an indictable offence (whether it was tried on indictment or not) where-
[(i), (ii) deleted]
(iii) a motor vehicle is used after the commission of the offence to provide, or to attempt to provide, a means for the offender to leave the place of the commission of the offence;
(iv) a motor vehicle is used by the offender after the commission of the offence to avoid, or to attempt to avoid, apprehension.
10 The principles of statutory construction are well known.
11 In the process of statutory construction, primary attention must be directed to the text of the relevant statute.1
12 In City of Kwinana v Lamont,2 the Court of Appeal provided the following summary of the task of statutory construction:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46 - 47 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78].
13 Part of the context in which the language of a statute must be interpreted is the purpose of the statute. The purpose of a statute may appear from an express statement in it, or by inference from its terms and appropriate reference to extrinsic material. The purpose of legislation must be derived from what the legislation says, not from any assumption about the desired or desirable reach or operation of the relevant provision.3
The disposition of the appeal
14 The appellant was sentenced for an offence under s 34(2) of the Administration Act. That section does not itself confer a power of disqualification. If a power of disqualification arose, it was under s 105(1) of the Sentencing Act.
15 The criterion of operation of the power of disqualification conferred by s 105(1) of the Sentencing Act is that the court is sentencing an offender for a motor vehicle offence. Section 105(5) defines what is a motor vehicle offence and thereby delineates the scope of the power under s 105(1). The definition of motor vehicle offence encompasses five categories of offences, set out in pars (a), (b), (c), (ca) and (d) of the definition. Only the definition in par (a) is of any potential relevance to the present case.
16 When that definition is inserted into s 105(1), the power under that provision arises when a court is sentencing an offender for an offence an element of which is the driving or use of a motor vehicle.
17 For the reasons that follow, the driving or use of a motor vehicle is not an element of the offence for which the appellant was sentenced.
18 In this context, 'element' means an essential ingredient of the offence as it is defined in the statute creating it.4 In this case, that means that an offence that falls within s 105(5)(a) is one that is not committed unless there is driving or use of a motor vehicle.5 In determining what is an element of an offence, attention is to be directed to the necessary ingredients of the offence as it is defined, not the particular evidence tendered to prove the offence charged.6
19 As I have said, the appellant was sentenced for an offence under s 34(2) of the Administration Act.
20 The elements of an offence under that section are the following:
(1) The accused is a responsible person, within the meaning of that term in the Administration Act, for a vehicle (the Vehicle).
(2) An offence under a written law is alleged to have occurred.
(3) An element of the alleged offence is driving or being in charge of the Vehicle.
(4) A police officer requests the accused to give information which may lead to the identification of the driver or person in charge of the Vehicle at the time of the alleged offence.
(5) The accused has or could reasonably have ascertained the requested information.
(6) The accused fails to give the information.
21 The respondent submits that the elements of an offence under s 34(2) should not be analysed in this way and that elements (2) and (3) above should be combined into a single element reflecting the structure of s 34(2)(a).7 In identifying the elements of an offence, there is no imperative to ensure that each paragraph of the section creating it is reflected in a single element. In any event, on my analysis, nothing turns on whether s 34(2) is said to have five elements or six.
22 Section 34(2) is concerned with the duty of a responsible person to provide information that may help to identify the driver or person in charge of a vehicle so as to assist in the investigation of an alleged offence.
23 I accept the respondent's submission that:
(1) the evident purpose of s 34(2) is to assist police in the investigation of certain types of offences (which can neutrally be termed traffic-related) committed by unidentified persons; and
(2) that purpose is effected through the imposition of an obligation to give information, upon request, which 'may lead to the identification of the driver or person in charge of the vehicle at the time of the alleged offence'.8
24 The respondent further submits that if there was no driving or use of a motor vehicle there would be no power for a police officer to request information under s 34(2)(b) and the offence under s 34(2) could not be made out.9 The respondent also submits that there needs to be some evidence of an offence involving driving or use of a motor vehicle before a police officer's power to request information arises and that, accordingly, evidence of that kind is essential to proof of an offence under s 34(2).10 For the reasons that follow, I do not accept these submissions.
25 Direct or admissible evidence of the commission of the offence referred to in s 34(2)(a) will not be necessary in all cases in order for the prosecution to establish that 'an offence is alleged to have occurred' within the meaning of that provision. I accept that an allegation by a police officer that an offence had occurred, made without any foundation, would not establish that 'an offence is alleged to have occurred' within the meaning of s 34(2)(a). However, if a police officer received information suggesting that an offence had been committed, there would be a sufficient foundation to sustain a conclusion that 'an offence is alleged to have occurred'. In a prosecution under s 34(2) it would not be necessary to call the source of that information as a witness. It would not be essential that the source had first hand knowledge of the relevant events and circumstances. Nor would it be essential that the evidence before the court proved beyond reasonable doubt that the alleged offence had been committed. Evidence providing a reasonable basis for an allegation that the offence was committed would suffice. So, in my view, in a prosecution under s 34(2) it is not necessary that any admissible evidence of the commission of the alleged offence be led.
26 Thus, contrary to the respondent's submission, proof that, at the time when the request for information was made, it was alleged that an offence had occurred does not require proof of the occurrence of the alleged offence. Were it otherwise, s 34(2) could not achieve its evident object of assisting in the investigation of alleged offences.
27 For the reasons just given, in a prosecution for an offence against that section, it is not necessary that the prosecution prove that any person drove or used the motor vehicle in question in order to prove the third element in the summary I set out in [20]. That element is directed to the elements of the alleged offence. The fact that the alleged offence must have driving or being in charge of a vehicle as an element does not make driving or being in charge of a vehicle an element of the offence under s 34(2). One way of proving the second and third elements under that section is by proving the commission of the alleged offence. But that is not the only way. For example, as I have said, it would be sufficient for a police officer to prove that they had received information suggesting that an offence, an element of which was driving or being in charge of a vehicle, had been committed. Thus, it is not necessary that there be any admissible evidence that the vehicle was driven or used. Consequently, I reject the respondent's submission that if there was no driving or use of the vehicle, the power to request information would not arise. If there was no basis to allege that there had been driving or use of the vehicle, the power would not arise, but that is not the same thing.
28 The fact that proving the commission of the alleged offence is one way of establishing the second and third elements under s 34(2) does not make an element of the alleged offence an element of the offence under that provision. As I have said, the elements of the offence under s 34(2) are to be identified by reference to the statutory definition of the offence, not the means of proof chosen by the prosecution.
29 Notwithstanding some equivocation,11 counsel for the respondent accepted that in a prosecution under s 34(2) it is not necessary to prove the alleged offence, or any of its elements, beyond reasonable doubt.12 In other words, proof that someone drove or was in charge of a vehicle is not essential to proof of an offence under s 34(2).13
30 Given that 'element' means an essential ingredient of an offence, that concession is fatal to the respondent's contention that the power under s 105(1) of the Sentencing Act arose in this case. Having made this concession, the respondent was driven to submitting that there must be some information or 'an evidentiary basis' for there to be an alleged offence an element of which is driving or being in charge of a vehicle.14 But, for the reasons I have already given, that does not make driving or being in charge of a vehicle an element of the offence under s 34(2). Something that the prosecution does not have to prove cannot be described as an essential ingredient of an offence, and so is not an element.
Conclusion
31 For these reasons, I granted an extension of time and leave to appeal, upheld the appeal and set aside the order of disqualification.
1Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39].
2City of Kwinana v Lamont [2014] WASCA 112 [47].
3Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249 [28]; Certain Lloyd's Underwriters Subscribing to Contract No IHOOAAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 [26], see also [89]; Director General of Department of Transport v McKenzie [2016] WASCA 147 [48].
4Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209; Muir v Morton [1984] WAR 254, 256.
5 See the preceding footnote.
6Kaporonovski (218, 223); Muir v Morton (256).
7 Respondent's submissions [34].
8 Respondent's submissions [38].
9 Respondent's submissions [39] - [40], [51(c)]; ts 4.
10 Respondent's submissions [40]; ts 10.
11 ts 6 - 7.
12 ts 7 - 8, 12 - 13.
13 ts 7 - 8, 13.
14 ts 7, 8 - 9, 10.
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