Director of Public Prosecutions (NSW) v McDougall - [2003] NSWCCA 217

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: DPP (NSW) v McDougall [2003] NSWCCA 217

FILE NUMBER(S):
60072/03

HEARING DATE(S): 31 July 2003

JUDGMENT DATE: 31/07/2003

PARTIES:
Director of Public Prosecutions (NSW) v Muir McDougall

JUDGMENT OF: Ipp JA Studdert J Hulme J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/22/0186

LOWER COURT JUDICIAL OFFICER: Armitage QC DCJ

COUNSEL:
D.C. Frearson (Appellant)
In person (Respondent)

SOLICITORS:
S.E. O'Connor (Appellant)

CATCHWORDS:
Information - offence of "negligent driving" - whether offence sufficiently described.

LEGISLATION CITED:
Criminal Appeal Act, s 5B
Road Transport (Safety and Traffic Management) Act 1999, s 42
Justices Act, ss 145A, 145B

DECISION:
The question posed in paragraph 4 of the stated case is answered in the affirmative.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60072/03
IPP JA
STUDDERT J
HULME J
Thursday 31 July 2003

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v MUIR McDOUGALL

Judgment

STUDDERT J: This matter comes before the Court pursuant to s 5B of the Criminal Appeal Act.
The respondent, Muir McDougall, was convicted at the Parramatta Local Court on 7 June 2002 for an offence of negligent driving.
On appeal to the District Court, his Honour Judge Armitage QC quashed the conviction and consequential orders, having determined that the information did not disclose an offence and was therefore invalid.
At the appellant’s request, his Honour submitted for the determination of this Court the question as to whether he had erred in law in concluding that the information did not disclose an offence.
The information naming the respondent, his address, birth date and licence number was in these terms:
“INFORMATION
ROAD TRANSPORT (SAFETY AND TRAFFIC MANAGEMENT) ACT 1999
SECTION 42(1)(c) AND SECTION 75B JUSTICES ACT 1902.
BE IT REMEMBERED THAT on the 30TH DAY OF JULY, 2001, at Parramatta, in the State of New South Wales, JACK SMITH, being an appropriate officer (hereinafter called the Informant) of the NSW Police Service, appeared before me, the undersigned, one of Her Majesty’s Justices duly assigned to keep the Peace of our Lady the Queen in and for the State, and informed me that on the 29TH DAY OF APRIL, 2001, at KENTHURST in the said State one MUIR MCDOUGALL, (hereinafter called the Defendant),
NEGLIGENT DRIVING
FURTHER PARTICULARS
VEHICLE NO.: MMO900
TIME: 1.10PM
ROAD/AREA: KENTHURST ROAD
ADDITIONAL INFORMATION:
COLLIDE WITH STATIONARY VEHICLE
IPB CODE: 3661”
It appears from the case stated that when the appeal was called in the District Court the learned judge expressed concern at the form of the information and thereafter the respondent’s representative submitted to the court that the information was invalid because it did not specify all the elements of the offence. The information referred to “Negligent Driving”, when it should have stated either “Did drive negligently on a road” or “Did drive negligently on a road related area.” It was further submitted on behalf of the respondent that the “Further Particulars” in the information did not form part of the information.
Contrary arguments were presented by the appellant.
In upholding the respondent’s submissions, the District Court judge determined
“that the information did not disclose an offence and was therefore invalid. The information did not specify that the respondent was driving the vehicle negligently. It was not sufficient for the prosecution to exhibit an information alleging ‘negligent driving’.
Further, whilst not forming an integral part of his determination, the judge also concluded that the information as laid should have stated either “road” or “road related area”, not both.
Was there error in his Honour’s conclusion that the information did not disclose an offence?
Section 42(1)(c) of the Road Transport (Safety and Traffic Management) Act 1999, referred to in the information, provided as follows:
“(1)A person must not drive a motor vehicle negligently on a road or road related area.
Maximum penalty:
……………..
(c)if the driving does not occasion death or grievous bodily harm – 10 penalty units.”
As at 29 April 2001 when the offence was allegedly committed, and as at the time that the information was later laid on 30 July 2001, s 145A(1) of the Justices Act read as follows:
“(1)The description of any offence in the words of the Act, or any order, by-law, regulation, or other document creating the offence, or in similar words, shall be sufficient in law…”
Section 145B provided, at times relevant to the offence alleged and the laying of the information:
“(2)For the purposes of this or any other Act, a summary offence…shall, in any information, … be deemed to be sufficiently stated or described if it is stated or described by the use of:
(a)an expression prescribed in relation to the offence, or
(b)an expression that is substantially the same as the prescribed expression,
but nothing in this section affects any other method of stating or describing an offence.
(3)An expression referred to in sub-section (2)(a) may be prescribed by a regulation made by this Act or under the Act creating the offence concerned, or under any Act authorising the issue of a penalty notice for the offence concerned. The regulation-making powers conferred by Acts other than this Act are extended accordingly.”
The Road Transport (General) (Short Descriptions and Penalty Notice Offences) Regulation 1999 prescribed in clause 5 “Short description of offences” for the purposes of s 145B of the Justices Act. Clause 5(1) reads:
“(1)For the purposes of section 145B of the Justices Act 1902, the prescribed expression for an offence created by a provision specified in Column 1 of Schedule 2 consists of:
(a)if one or more IPB codes are set out in relation to the offence in Column 2 of Schedule 2, any of those IPB codes together with:
(i)the text set out in relation to the offence in Column 3 of Schedule 2, or
(ii)if a choice of words is indicated in that text, the words remaining after the omission of the words irrelevant to the offence, or
(b)if no IPB code is set out in relation to the offence in Column 2 of Schedule 2:
(i)the text set out in relation to the offence in Column 3 of Schedule 2, or
(ii)if a choice of words is indicated in that text, the words remaining after the omission of the words irrelevant to the offence.”
(It is to be noted that clause 3 of the regulation defined IPB Code, the expression above used, as meaning in relation to an offence the code allocated to the offence by the Infringement Processing Bureau.)
Clause 5(2), (3) and (4) read:
“(2)For the purposes of any proceedings for an offence created by a provision specified in Column 1 of Schedule 2, the prescribed expression is taken to relate to the offence created by the provision, as the provision was in force when the offence is alleged to have been committed.
(3)The amendment or repeal of a prescribed expression does not affect the validity of any information, complaint, summons, warrant, notice, order or other document in which the expression is used.
(4)Subclause (3) applies to any information, complaint, summons, warrant, notice, order or other document (whether issued, given or made before or after the amendment or repeal) that relates to an offence alleged to have been committed before the amendment or repeal.
Note: The short description for an offence appears in Schedule 2 in the order determined by the title of the Act or instrument, and the number of the provision, by which the offence is created. In the case of a penalty notice offence, information as to the name of the Act or instrument, and the number of the provision, for a given short description is obtainable from the Infringement Processing Bureau. A penalty notice is identifiable as such by the fact that it has an IPB number.”
Turning to the Schedule 2 referred to in clause 5, Column 3 thereof gives a “short description” for the offence provided for by s 42(1)(c) of the Road Transport (Safety and Traffic Management) Act 1999. That short description expressed in Column 3 is simply: “negligent driving”. That is the expression of the offence adopted in the information. The IPB Code for negligent driving expressed in Column 2 of the Schedule is 3661, and this no doubt accounts for the code set out in the information laid concerning the respndent.
Whilst the Road Transport (General) (Short Descriptions and Penalty Notice Offences) Regulation 1999 was amended by Road Transport (General) (Short Descriptions and Penalty Notice Offences) Amendment Regulation 2000, the amending regulation did not disturb the short description “negligent driving”, as expressed in the earlier 1999 regulation. The short description text for an offence against s 42(1)(c) of the Road Transport (Safety and Traffic Management) Act remained “negligent driving”.
Having regard to the above statutory provisions and to the above regulations, it is submitted by the appellant that it sufficed that the information concerning the respondent it referred to “negligent driving”, for the purpose of identifying and describing the offence allegedly committed by the respondent. In my opinion that submission is correct.
As the appellant properly acknowledged, neither the provisions of the relevant regulation nor the provisions of s 145A of the Justices Act eliminated the common law requirement for the information to identify the essential factual ingredients of the offence allegedly committed: see Ex parte O’Sullivan (1944) 61 WN 197 at 200; John L Pty Limited v Attorney General (1987) 163 CLR 508 and Stanton v Abernathy (1990) 19 NSWLR 656. When one reads the information, it does not assert in as many words that the respondent committed the offence of negligent driving. However it identifies the respondent, describing him as the defendant and it identifies the offence of negligent driving, contrary to the relevant Act and the relevant section of that Act. It was not contended by the respondent when he appeared in the Local Court that he was in doubt as to whether he was being charged with having committed the offence of negligent driving. Further, the respondent’s notice of appeal to the District Court annexed to the case stated specified only as a ground of appeal to his conviction for negligent driving that he was not guilty.
The case stated discloses that it was the District Court judge who first expressed concern as to the form of the information and it was after this that the respondent submitted that the information was defective in that it should have stated either that the respondent drove negligently on a “road” or that he drove negligently on “a road related area”. So it was that the only point taken before the District Court judge was that the information was defective because it did not make it clear whether it was to be the prosecution case that the respondent drove negligently on a “road” or whether he drove negligently on a “road related area”.
It does not seem to me that there was merit in that submission or that his Honour was correct in concluding that there was duplicity in the expression of the location of the commission of the offence. I do not accept the thoughtful written submissions which the respondent has presented to this Court to the contrary. The particulars in the information identify the place where the offence was committed as Kenthurst Road and as having involved a collision with a stationary vehicle.
If however the respondent had been troubled by any uncertainty as to whether it was being alleged against him that he had committed an offence on a “road” or on a “road related area”, it would have been in order for this concern to have been expressed and for the court then to have required the prosecution to clarify precisely what its case was in this regard before the hearing proceeded further: see Hedberg v Woodhall (1913) 15 CLR 531 per Griffiths CJ at 536 and Isaacs J at 536. However this was not done, presumably because the respondent was troubled by no such uncertainty.
In my opinion, the learned District Court judge should have proceeded to deal with the appeal on its merits. I consider that the question of law posed in paragraph 4 of the case stated should be answered in the affirmative.
The further question however arises as to whether this matter should be remitted to the District Court for reconsideration by a judge of that court. In this regard I am mindful of the history of the matter that is referred to in the written submissions presented by the respondent. It appears that the proceedings before the Local Court were adjourned on a number of occasions and eventually were adjourned part heard before reaching their conclusion. Once the matter went on appeal to the District Court there were a number of adjournments in that court because the case was not able to be reached having regard apparently to the court list.
The fine which was imposed in the Local Court on conviction was $50. The respondent has informed this Court that he attended the courts on each and every occasion when the matter was listed in both the Local Court and in the District Court and no doubt these attendances were at considerable expense to him.
It seems to me having regard to this history that it would not be appropriate for the matter to be revisited in the District Court for the purpose of a further hearing in that court. The penalty that was imposed reflects the gravity of the offence in the eyes of the magistrate who heard the matter on the merits. In my opinion it would be altogether inappropriate if further time and expense was taken up in a further hearing.
Hence, in my opinion the matter ought not be remitted to the District Court. This Court should simply answer the question posed in paragraph 4 of the case stated in the affirmative.
IPP JA: I agree.
HULME J: I also agree.
IPP JA: The order of the Court will be as proposed by Studdert J.

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LAST UPDATED: 05/08/2003