Director of Public Prosecutions (NSW) v Mark Alan Beaman - [2005] NSWSC 1236

No judgment structure available for this case.

Reported Decision:
64 NSWLR 634

New South Wales

Supreme Court

CITATION:
Director of Public Prosecutions (NSW) v Mark Alan Beaman [2005] NSWSC 1236

HEARING DATE(S): 9 and 11 May 2005

JUDGMENT DATE :

11 May 2005

JUDGMENT OF:
Latham J at 1

DECISION:
The magistrate erred in law in determining that interstate offences could not be taken into account in determining the applicable maximum monetary penalty and the applicable automatic and minimum disqualification periods of the offence of drive with low concentration of alcohol. Costs to the plaintiff and grant of a certificate under the Suitors’ Fund Act to allow those costs to be met. I note that an undertaking was given by the plaintiff not to pursue the defendant personally for those costs

CATCHWORDS:
Statutory Interpretation - Whether regard should be had to interstate offences for purposes of penalty provisions in Road Transport legislation.

LEGISLATION CITED:
Crimes (Local Courts Appeal and Review) Act 2001
Road Transport (Safety and Traffic Management) Act 1999
Road Transport (General) Act 1999
Motor Traffic Act 1909
Safety Act
General Act
Motor Traffic Amendment Act No 29 of 1937
Motor Traffic (Road Safety) Amendment Act No 123
Traffic Act 1909
Habitual Criminals Act 1957
Offenders Probation Act 1913-71
Suitors’ Fund Act

CASES CITED:
Regina v Green (1982) 2 NSWLR 933
R v Collins

PARTIES:
Plaintiff - Director of Public Prosecutions,
Defendant - Mark Alan Beaman

FILE NUMBER(S):
SC 10943/05

COUNSEL:
Plaintiff- Mr PL Lakatos
Defendant - No appearance

SOLICITORS:
Plaintiff: S Kavanagh

LOWER COURT JURISDICTION:

LOWER COURT FILE NUMBER(S):
----

LOWER COURT JUDICIAL OFFICER :
MI MacPherson M

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

11 MAY 2005

10943/05 - DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v MARK ALAN BEAMAN
JUDGMENT

1 HER HONOUR: The plaintiff appeals pursuant to s 59(2) of the Crimes (Local Courts Appeal and Review) Act 2001 against the orders of Local Court Magistrate M I MacPherson made at Tamworth Local Court on 12 November 2004.

2 The defendant pleaded guilty to a charge of Drive with Low Range Concentration of Alcohol contrary to s 9 (2)(a) of the Road Transport (Safety and Traffic Management) Act 1999 [the Safety Act]. The magistrate find him $330 and disqualified him from driving for a period of 6 months to date from 22 November 2004. The automatic disqualification periods prescribed by s 25 of the Road Transport (General) Act 1999 [the General Act] which applied were - 6 months (but no less than 3 months) where there were no convictions for major offences in the preceding 5 years - s 25 (2)(a), or 12 months (but no less than 6 months) where there were such convictions for major offences in the preceding 5 years - s 25 (3)(a).

3 The evidence relied upon is annexed to the affidavit of R V Paul sworn 15 March 2005. The court attendance notice, annexure A, disclosed that the defendant was charged with a Low Range offence by reason of having driven a motor vehicle on 25 October 2004. The defendant's traffic record, annexure B, disclosed that he was originally licensed in 1981 and since that time he has had two alcohol related driving convictions recorded against him. Both convictions were in Queensland courts, the first in June 1995 and the second on 4 September 2000. The second entry is as follows:

4 The reasons of the magistrate are set out at pages 2 and 3 of annexure C to the affidavit of R Paul. The magistrate had regard to the version current in 1982, of s 10 (3A) of the Motor Traffic Act and the consideration of the section in Regina v Green (1982) 2 NSWLR 933. His Honour noted that the present section, that is s 25, did not have the words "other crimes and offences" but referred to "one or more other major offences". The magistrate concluded at page 3 of the transcript of that date:

It seems to me the words are different. This is an opportunity for somebody to take it to the Supreme Court and have it sorted out. So I am holding that in fact those words do not appear, it says major offence. Major offence (sic) seem to me to be confined to New South Wales legislation. I do not know that other States and territories use the words major offence. It really needs to be sorted out.

Statutory Framework

5 The present case is concerned with a breach of s 9(2) of the Safety Act which I set out below:

(1A) Offence--novice range of prescribed concentration of alcohol

(c) if the person is the holder of a driver licence (other than a provisional licence or a learner licence issued under the Road Transport (Driver Licensing) Act, 1998 - occupy the seat in a motor vehicle next to a holder of a learner licence who is driving the vehicle.

...

(4) Offence--high range prescribed concentration of alcohol

...

6 The dictionary defines "special range" as 0.02 gms or more but less than 0.05 gms of alcohol in 100 ml of blood; "low range" as 0.05 gms or more but less than 0.08 gms of alcohol in 100 ml of blood; "middle range" as 0.08 gms or more but less than 0.15 gms of alcohol in 100 ml of blood; and "high range" as 0.15 gms or more of alcohol in 100 ml of blood.

7 Section 24(1) of the General Act which in terms is subject to, inter alia, s 25 provides for the general power of a court to disqualify persons upon their conviction of certain offences. That section provides that a court that convicts a person of an offence under the road transport legislation may, at the time of the conviction, order the disqualification of the person from holding a driver's licence for such period as the court specifies. Section 24(5) requires the court to cause particulars of each conviction or order under the road transport legislation to be forwarded to the Roads and Traffic Authority.

8 Section 25 of the General Act prescribes the disqualification periods for major offences including offences contrary to s 9 of the Safety Act. A major offence is defined by s 3(1) as:

(a) a person who is, in respect of the death of or bodily harm to another person caused by or arising out of the use of a motor vehicle driven by the person at the time of the occurrence out of which the death of or harm to the other person arose, convicted of:

(b) a person who is convicted of an offence under section 51A of the Crimes Act 1900, or

(c) a person who is convicted of an offence under any of the following provisions:

(d) a person who is convicted of aiding, abetting, counselling or procuring the commission of or being an accessory before the fact to, any such crime or offence .

...

(2) Disqualification if no previous major offence.

...

(i) the person is automatically disqualified for 5 years from holding a driver licence, or

(4) Calculation of disqualification periods in case of multiple offences.

...

(5) Disqualification in addition to any other penalty.

...

(6) Relationship to Subdivision 2.

...”

9 Finally it should be noted that section 26(2) specifically provides for the recognition and giving effect to of disqualifications in other States. It provides that a disqualification to hold an Australian driver licence held under a law in force in another State or internal Territory by a person who holds a driver licence issued in this State is to be treated as if it were a disqualification to hold the driver licence issued in this State.

10 In the Second Reading Speech to the Safety Act delivered on 23 June 1999, the Minister stated that the primary purpose of the Bills was to provide a legislative framework for the adoption of a nationally uniform set of Australian road rules and as a result, there was the opportunity for much needed rationalisation of the Traffic Act 1909.

11 I turn to a consideration of the legislative history of section 25. Section 10 of the Motor Traffic Act 1909 gave power to a court before whom a person was convicted of an offence under that Act to suspend a person’s licence or disqualify the person from obtaining a licence.

12 The next relevant amendment of section 10 was effected by the Motor Traffic Amendment Act No 29 of 1937 which inserted s.10(3A) which was relevantly in the following form:

13 The operative portion of that provision for present purposes is the phrase “such person has been convicted of one or more offences (whether of the same or a different kind) of the class referred to in this paragraph”.

14 In seeking leave to introduce the Bill on 24 November 1937, the Minister made only a passing reference to section 10 at page 1924. That reference did not advert to the present issue, namely, whether interstate convictions would activate section 10(3A).

15 Between 1937 and 1980, section 10 was amended on a number of occasions. In 1981, section 10(3A) was relevantly in the following form:

(a) if, at the time of such conviction or during the period of five years immediately before such conviction (whether such period commenced before or commences after the commencement of the Motor Traffic (Amendment) Act 1951) , such person is or has not been convicted of any other crime or offence (whether of the same or a different kind) of the class referred to in this paragraph, he shall be disqualified by such conviction and without any specific order for a period -

(b) if, at the time of such conviction or during the period of five years immediately before such conviction (whether such period commenced before or commences after the commencement of the Motor Traffic (Amendment) Act 1951), such person is or has been convicted of one or more other crimes or offences (whether of the same or a different kind) of the class referred to in this paragraph, he shall be disqualified by such conviction and without any specific order for a period -

16 The only judicial consideration of the present section or its predecessors occurred when section 10 was in this form. In Regina v Green the Court of Criminal Appeal considered the present issue and determined that the words “other crimes and offences” were not confined to crimes and offences committed in New South Wales.

17 The next relevant amendment of section 10 was effected by the Motor Traffic (Road Safety) Amendment Act No 123 of 1982. That Act removed subsection 10(3A) and inserted a new section 10A. Section 10A(1) was entitled “Disqualification for certain major offences” and set out the persons to whom the section applied (“the convicted person”) in terms of a series of offences which had previously been listed in section 10(3A). Convictions for those offences were to be referred to as “the conviction”.

18 Thereafter section 10A relevantly provided as follows:

(b) where the conviction is for an offence under section 4E(1F) -

(i) he shall be disqualified by the conviction and without any specific order ...

(b) where the conviction is for an offence under section 4E(1F) ...

19 It is noteworth the term “major offence” was not used in the body of section 10A. In the Second Reading Speech on 24 November 1982 the Minister for Transport stated that the principal purpose of the Bill was to introduce random breath testing. Accordingly, there was only a passing reference to the issue of disqualification periods.

20 The last amendment of significance to the present issue occurred on 15 April 1999 to what was then known as the Traffic Act 1909. Section 2 of that Act defined the term “major offence” as meaning:

(b) an offence under section 4E(1) or (1B) as in force before the commencement of this paragraph.”

“(2) If, at the time of the conviction of the convicted person or during the period of 5 years before the conviction (whether that period commenced before or commences after the commencement of this section), the convicted person is not or has not been convicted of any other major offence (whether of the same or a different kind) then -

(i) the person shall be disqualified by the conviction and without any specific order ...

(b(i)) where the conviction is for an for offence under section 5AC -

(a) where the conviction is for an offence under section 4E(1E) -

(b) where the conviction is for an offence under section 4E(1F) -

21 In summary then, two changes to section 10(3A) or section 10A occurred since 1982. The first was the use of the term “major offence” in the body of the section; the second was the omission of the qualifying phrase “of the class referred to in this section”. The question then is whether there is anything in the amendments since 1982 which indicates an intention that the disqualification provisions should not have regard to interstate offences.

22 In Regina v Green the Court of Criminal Appeal was comprised of Street CJ, Samuels JA and O’Brien CJ of CrD. Street CJ gave the leading judgment in which he posed the question in the stated case as whether the appellant’s Canberra offence brought him within the terms of section 10(3A) - in other words, was that offence within the concept of “other crimes or offences” in section 10(3A)(b). It was common ground that the Canberra offence was “an offence of the class referred to in the paragraph”.

23 His Honour referred to the provisions of the Habitual Criminals Act 1957 and continued at pp 935-936 of the reported decision:

“In the Motor Traffic Act the context is different. There is to be found in that Act no similar indication which might be relied upon as giving a territorial limitation to the concept of ‘other crimes or offences’. There is accordingly no necessity to look for words of extension in the Motor Traffic Act .

... the Legislature has, by the terms it has used in the relevant portions of section 10(3A), intended to, and in fact achieved, an extension of the meaning of those words so as to extend to ‘other crimes or offences’ whether committed within New South Wales or outside New South Wales. The qualification which is placed upon ‘other crimes or offences’ is that they be ‘of the class’ referred to in the paragraph.
Plainly enough the Canberra offence was ‘of the class’ referred to in the paragraph and I see no reason on the face of this statute, nor upon any other consideration of the legislative purpose which can be seen to have been enshrined within its terms, for restricting the words ‘other crimes or offences’ to those committed within New South Wales.”

24 Samuels JA stated at page 936:

“It seems to me that there is every reason to suppose that the Legislature intended to pick up offences of the class in question wherever they were committed. To put it in a negative way, and if I may respectfully borrow the words of Bray CJ in R v Collins (1976) 12 SASR 498 at p.501, ‘Neither the language nor the purpose of the section seems to me to require any such limitation’; that is to say, any limited territorial application. On the contrary, to my mind the purpose of the section requires the opposite construction.”

25 In R v Collins it was held that the words “to be of good behaviour” in the Offenders Probation Act 1913-71 should not be limited in any territorial sense.

26 Two Practice Books refer to Green as being authoritative in relation to s.25 (see Motor Traffic Law - Butterworths, volume 2 at p.85,090; and Leslie and Britts Motor Vehicle Law at page 2-84.

27 From a review of the above it is evident that there is nothing in the Safety Act or the General Act which points to a territorially restricted application of section 25. In fact, the advent of those Acts in 1999, with the stated purpose of providing a legislative framework for the adoption of a nationally uniform set of Australian road rules, tends to support the notion that rather than the States and Territories existing in isolation, there is a public benefit in their acting co-operatively. This is particularly so where public safety is the primary consideration.

28 The movement towards a co-operative approach is reinforced by the enacting of section 26(2), which specifically provides for the recognition and giving effect to of disqualifications in other States.

29 The replacement of the terms “other crimes and offences” with “major offences” is not significant and whether or not other States adopt this technique of legislative drafting is not the point. The issue of substance is whether other States have offences of the same or similar character to the offences defined as major offences. In the present case the relevant Queensland conviction has an obvious counterpart in s.9 of the Act and is unambiguously a major offence.

30 If the proper approach is that taken by the magistrate, some curious results may flow. Some States may have adopted similar terminology in their corresponding traffic legislation - if that were so, on the reasoning of the magistrate, s.25 would have regard to them. Other States may have similar substantive offences, but not adopt the terminology, and they could not be taken into account.

31 A third option is that other States may have adopted the terminology in relation to offences other than arising out of the use of a motor vehicle. The magistrate’s reasoning would require those offences to be taken into account. Each of these results are arbitrary and arguably unfair and their application would not be for the evident purpose of public safety.

32 In any event, it is evident in Green that it was not the phrase “other crimes and offences” of itself which persuaded the Court of Criminal Appeal of its territorial application. It was the context and purpose of the provision in its statutory context which their Honours found persuasive. It is submitted that nothing in the Safety Act and the General Act indicates a narrow territorial application of s.25; nor is there any indication in the apparent purpose of those enactments, which leads to the conclusion. I find that submission persuasive in the circumstances.

33 In the present case, the Queensland conviction in 2000 was the equivalent of a conviction for a high-range PCA offence contrary to s.9(4) of the Safety Act. As such, it was in substance a major offence as defined in s.3(1) and s.25(1) of the General Act (see paragraph (c)(iv) of the definition of “convicted person”).

34 Accordingly, the magistrate should have concluded that the defendant had been convicted of a major offence in the five years preceding the present conviction. In those circumstances I am satisfied that the magistrate erred in focusing solely upon the different terminology between s.10(3A) and s.25 and in concluding that the latter does not have regard to interstate offences.

35 Further, his Honour erred in failing to have regard to Green’s case as cogent authority on the proper construction of s.25.

36 Accordingly, I make the following declaration:

I declare that the magistrate erred in law in determining that interstate offences could not be taken into account in determining the applicable maximum monetary penalty and the applicable automatic and minimum disqualification periods of the offence of drive with low concentration of alcohol.

37 No other orders set out in the summons filed in this Court on 16 March 2005 are sought and I make no further orders, save that in relation to costs, I award costs to the plaintiff and grant a certificate under the Suitors’ Fund Act to allow those costs to be met. I note that an undertaking was given by the plaintiff not to pursue the defendant personally for those costs.

**********

Citations

Director of Public Prosecutions (NSW) v Mark Alan Beaman [2005] NSWSC 1236

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

12

R v Baltensperger [2004] SADC 95

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CITATION:	Director of Public Prosecutions (NSW) v Mark Alan Beaman [2005] NSWSC 1236
HEARING DATE(S):	9 and 11 May 2005
JUDGMENT DATE :	11 May 2005
JUDGMENT OF:	Latham J at 1
DECISION:	The magistrate erred in law in determining that interstate offences could not be taken into account in determining the applicable maximum monetary penalty and the applicable automatic and minimum disqualification periods of the offence of drive with low concentration of alcohol. Costs to the plaintiff and grant of a certificate under the Suitors’ Fund Act to allow those costs to be met. I note that an undertaking was given by the plaintiff not to pursue the defendant personally for those costs

CATCHWORDS:	Statutory Interpretation - Whether regard should be had to interstate offences for purposes of penalty provisions in Road Transport legislation.
LEGISLATION CITED:	Crimes (Local Courts Appeal and Review) Act 2001 Road Transport (Safety and Traffic Management) Act 1999 Road Transport (General) Act 1999 Motor Traffic Act 1909 Safety Act General Act Motor Traffic Amendment Act No 29 of 1937 Motor Traffic (Road Safety) Amendment Act No 123 Traffic Act 1909 Habitual Criminals Act 1957 Offenders Probation Act 1913-71 Suitors’ Fund Act
CASES CITED:	Regina v Green (1982) 2 NSWLR 933 R v Collins
PARTIES:	Plaintiff - Director of Public Prosecutions, Defendant - Mark Alan Beaman
FILE NUMBER(S):	SC 10943/05
COUNSEL:	Plaintiff- Mr PL Lakatos Defendant - No appearance
SOLICITORS:	Plaintiff: S Kavanagh

LOWER COURT JURISDICTION:
LOWER COURT FILE NUMBER(S):	----
LOWER COURT JUDICIAL OFFICER :	MI MacPherson M