Chadwick v Police - [2018] SASC 35

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CHADWICK v POLICE
[2018] SASC 35
Judgment of The Honourable Justice Vanstone
23 March 2018
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG - SENTENCE AND PENALTY
Complaint for driving while having a prescribed drug in oral fluid laid more than six months after but within two years of the offence.
Whether an offence other than a first offence against s 47BA(1) of the Road Traffic Act 1961 (SA) is an expiable offence and requires proceedings to be commenced within six months of the date on which the offence was committed.
Held: Appeal allowed. Any offence against s 47BA(1) is expiable and therefore the limitation for commencing proceedings is six months under s 52(1)(a) of the Summary Procedure Act 1921 (SA). Conviction quashed.
Road Traffic Act 1961 (SA) s 47BA; Summary Procedure Act 1921 (SA) s 52; Expiation of Offences Act 1996 (SA) s 5; Road Traffic (Miscellaneous) Regulations 2014 (SA) Part 2, Schedule 4; Motor Vehicles Act 1959 (SA) s 81D, referred to.

CHADWICK v POLICE
[2018] SASC 35
Magistrates Appeal: Criminal
VANSTONE J.

Sharon Lee Kathleen Chadwick pleaded guilty in the Magistrates Court to offences of driving while disqualified from holding or obtaining a licence, driving while having a prescribed drug in her oral fluid and, on separate complaint, failing to comply with a term of a bail agreement. She pleaded guilty to all three offences and was sentenced on the same day. Terms of imprisonment were imposed both on the driving disqualified and the breaching bail offences, but were to run concurrently.
By amended notice of appeal the appellant sought to challenge the Magistrate’s decision not to backdate the sentence to give credit for time already spent in custody and also sought the quashing of the conviction for driving while drug affected, on the basis that the complaint containing that charge was not filed within six months of the offence.
Upon the hearing of the appeal Mr Culshaw, counsel for the appellant, advised that further information relevant to the question of backdating the sentence had come to light and that the appeal against sentence was no longer pursued. He did, however, proceed with the appeal against the conviction for the drug driving offence.
Background
Driving a motor vehicle while a prescribed drug is present in oral fluid is an offence against s 47BA of the Road Traffic Act 1961 (SA). In essence, Mr Culshaw argues that any offence against that section is an expiable offence. That is established, he submits, by s 5 of the Expiation of Offences Act 1996 (SA) in combination with the Road Traffic (Miscellaneous) Regulations 2014 (SA), Schedule 4 – Expiation of offences. Schedule 4, Part 1, cl (1) relevantly provides that the expiation fees set out in the Schedule are fixed for the offences against the Act specified in the Schedule. Part 2 of Schedule 4 lists a number of offences by reference to the section which creates them. Against s 47BA(1) and the offence of “Driving with prescribed drug in oral fluid or blood” is given the amount of $600. Therefore, Mr Culshaw argues, all offences against that section are expiable.
That conclusion is fortified, it is put, by reference to s 81D of the Motor Vehicles Act 1959 (SA) which requires the Registrar of Motor Vehicles to issue a notice of licence disqualification where second or subsequent breaches of s 47BA(1) are expiated. The length of the disqualification will vary depending on whether the offence is a second, third or subsequent offence. Therefore, it is said, that Act plainly contemplates expiation of s 47BA offences, whether second or subsequent.
I set out relevant parts of the Motor Vehicles Act section:
81D—Disqualification for certain drug driving offences
(1)This section applies to an alleged offence against section 47BA(1) of the Road Traffic Act 1961 other than a first offence.
(2)If a person expiates an offence to which this section applies, the Registrar must, on becoming aware of that fact, give the person written notice—
(a) that, commencing on the day on which the notice takes effect in accordance with section 139BD, the person is disqualified from holding or obtaining a licence or learner’s permit for—
(i)if the offence is a second offence—6 months; or
(ii)if the offence is a third offence—12 months; or
(iii)if the offence is a subsequent offence—2 years; and
(b) that, if the person holds any licence or learner’s permit when the notice takes effect, the licence or permit is cancelled.
…
Section 52 of the Summary Procedure Act 1921 (SA) provides that, for summary offences which are expiable, proceedings must be commenced within six months. It is common ground that the prosecution of the appellant for driving with a prescribed drug in oral fluid or blood was not commenced within six months. Consequently, it is argued that, notwithstanding the appellant’s plea of guilty, the prosecution was commenced out of time and the charge should have been quashed.
Ms Wycherley, for the police, argues that the offence charged, being a second or subsequent offence, was not expiable and therefore the relevant time limit was not six months, but two years: s 52(1) Summary Procedure Act. Consequently, the charge was laid within the allowable period.
Consideration
The Expiation of Offences Act came into force early in 1997. Its long title records that it is an Act to provide “for the expiation of minor offences”. The definition section of the Act, s 4, does not define “expiable offence”. Rather, s 5 describes the ambit of the Act. It is in the following terms:
5—Certain offences may be expiated
(1) If an expiation fee is fixed by or under an Act, regulation or by-law in respect of an offence, an expiation notice may be given under this Act to a person alleged to have committed the offence and the alleged offence may accordingly be expiated in accordance with this Act.
(2) Subsection (1) applies in relation to offences committed before or after the commencement of this Act.
(3)Subject to subsection (4), a power under an Act to impose a penalty for the contravention of a regulation or by-law will be taken to include the power—
(a) to provide that an alleged offence against the regulation or by-law may be expiated in accordance with this Act; and
(b) to fix for that purpose an expiation fee not exceeding—
(i) if the maximum fine prescribed for the offence is expressed as a divisional fine—a divisional expiation fee of the same division; or
(ii) in any other case—
(A) $315; or
(B) 25% of the maximum fine prescribed for the offence,
whichever is the lesser.
(4)An offence against a regulation or by-law that is an offence involving violence is not and cannot be, despite subsection (3) or the provisions of any other Act, an expiable offence.
Notes—
• Various other Acts (eg the Controlled Substances Act 1984) provide that certain offences may be expiated in accordance with this Act.
•Section 28A of the Acts Interpretation Act 1915 sets out a scale of divisional expiation fees for use when an expiation fee is expressed as a divisional fee (ie not in dollars).
As can be seen from s 5, it is contemplated that other Acts, regulations or bylaws will fix expiation fees in relation to the offences with which they deal. Those offences will then be expiable.
As mentioned, Schedule 4 of the Road Traffic (Miscellaneous) Regulations provides a number of expiation fees set in relation to offences against the Road Traffic Act. It is noteworthy that, while s 47BA(1) of the Road Traffic Act appears to create a single offence with three penalty bands depending on whether the offence alleged is a first, second, or third or subsequent offence, Schedule 4, Part 2 does not reflect any such division. To that extent it can be contrasted with the treatment in Schedule 4 of the offence of driving while having prescribed concentration of alcohol in blood, which is s 47B. In s 47B itself, one offence again appears to be created, but the relevant penalty attaching to the offence varies depending on whether it is a first, second, or third or subsequent offence, and, within those classes, whether it is a category 1, 2 or 3 offence. Categories are defined in s 47A(1) in terms of the concentration of alcohol alleged. When it comes to Schedule 4, Part 2 of the regulations, it is explicit that only a category 1 offence (involving a blood alcohol level of less than 0.08 grams in 100ml of blood) is expiable.
On the face of it then, any offence against s 47BA is expiable. However, Ms Wycherley argues that it is clear by implication from s 47BA(6) that it is only a first offence against s 47BA which is able to be expiated. That subsection is in the following terms:
(6)If a person aged 16 years or more is alleged to have committed an offence against this section that is a first offence, the person cannot be prosecuted for that offence unless he or she has been given an expiation notice under the Expiation of Offences Act 1996 in respect of the offence and allowed the opportunity to expiate the offence in accordance with that Act.
Ms Wycherley argues that subsection (6) dictates that only a first offence may be expiated. I understand the argument to be that subsection (6) covers the field of expiable offences against s 47BA, and delineates the circumstances in which offences against that section may be expiated. Ms Wycherley argues that this conclusion is supported by reference to the penalty bands for second and third offences against s 47BA, which are far in excess of the $600 amount provided in Schedule 4, Part 2. Counsel argues that it is impermissible to have regard to the terms of s 81D of the Motor Vehicles Act for the purpose of interpreting s 47BA of the Road Traffic Act.
Ms Wycherley’s argument should be rejected. It involves a misreading of s 47BA(6). The provisions of the Expiation of Offences Act and the Road Traffic Act are harmonious inasmuch as the issuing authority (in this case the Commissioner of Police) is given the discretion to issue an expiation notice in relation to, relevantly, s 47BA offences. That it is a discretion, rather than an obligation, is made clear by the terms of s 5 of the Expiation of Offences Act in the use of the words “… an expiation notice may be given …”. Section 47BA(6) imposes a qualification on that discretion. In relation to persons aged 16 years or more alleged to have committed an offence against the section which is a first offence, the person may not be prosecuted unless he or she has been given an expiation notice. However, contrary to Ms Wycherley’s argument, that subsection does not address, carry any implication for, or otherwise restrict the discretion given to the issuing authority in relation to subsequent offences. In order to reach this conclusion it is unnecessary to look beyond the terms of the Road Traffic Act and its regulations. Nonetheless, s 81D of the Motor Vehicles Act, which forms part of the legislative scheme under discussion, only fortifies the view I have taken. The relevant provisions were introduced on the same day.
It is common ground that no expiation notice was given in relation to this offence. Under s 52(1) of the Summary Procedure Act that is of no consequence because the six month period for commencement of a prosecution applies whether or not such a notice was given.
It is unnecessary to go to those cases which deal with the circumstances in which an appeal against conviction can be pursued even where a plea of guilty was entered. Ms Wycherley concedes that in this case it would be appropriate to quash the conviction if the view is reached that the six month time limit applied. Consequently, I shall allow the appeal against conviction in relation to the s 47BA offence and set aside that conviction and the penalty imposed in relation to it. The appeal against sentence relating to the other offences will be dismissed.
Conclusion
For the foregoing reasons, I have found that an offence against 47BA is an expiable offence and, irrespective of whether an expiation notice is issued, any proceedings to prosecute the offence must be commenced within six months of the offence. The complaint was not laid within that time period.
The appeal against conviction is allowed. The conviction for driving with a prescribed drug in oral fluid is quashed. The penalty imposed in relation to that conviction is set aside. The appeal against sentence is dismissed.