Director of Public Prosecutions v Belani

[2005] NSWSC 1013

Reported Decision: 64 NSWLR 319

New South Wales

Supreme Court

CITATION:	Director of Public Prosecutions v Belani; Director of Public Prosecutions v Jumah; Director of Public Prosecutions v Ammoun [2005] NSWSC 1013
HEARING DATE(S):	4 October 2005
JUDGMENT DATE :	7 October 2005
JUDGMENT OF:	Johnson J at 1
DECISION:	See paragraph 72 of judgment

CATCHWORDS:	ROAD TRANSPORT - offence of taking part in race between vehicles on a road or road-related area contrary to s.40(1)(a) Road Transport (Safety and Traffic Management) Act 1999 - whether offence confined to planned or organised races - whether offence extends to impromptu or unplanned street racing - whether absence of approval of Commissioner of Police for race constitutes an element of the offence or an exception or proviso under s.417A Crimes Act 1900.
LEGISLATION CITED:	Crimes (Local Courts Appeal and Review) Act 2001 Road Transport (Safety and Traffic Management) Act 1999 Crimes Act 1900 Traffic Act 1909 Interpretation Act 1987 Justices Act 1902 Suitors' Fund Act 1951 Supreme Court Rules
CASES CITED:	Weekes v Lahood (1992) 10 Petty Sessions Review 4501; (Grove J, 31 July 1992, BC9201717) Cox v Salt (1994) 12 WAR 12 Amalgamated Television Services Pty Limited v Marsden (2001) 122 A Crim R 166 May v O'Sullivan (1955) 92 CLR 654 Australian Gas Light Company v Valuer-General (1940) 40 SR(NSW) 126 Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355 Environment Protection Authority v Australian Iron & Steel Pty Limited (1992) 28 NSWLR 502 Romeyko v Samuels (1972) 2 SASR 529 R v Manwaring (1983) 2 NSWLR 82 Francis v Flood (1978) 1 NSWLR 113 Phillips v Cassar (1979) 2 NSWLR 340 Lynch v Attwood (1983) 3 NSWLR 1 Chugg v Pacific Dunlop Limited (1990) 170 CLR 249 Council of the City of Lake Macquarie v Morris [2005] NSWSC 387
PARTIES:	Director of Public Prosecutions (Plaintiff) Zakaria Belani (Defendant) Khodr Jumah (Defendant) Omar Ammoun (Defendant)
FILE NUMBER(S):	SC 12417/05; 12418/05; 12419/05
COUNSEL:	Mr M Buscombe (Plaintiff) Mr Z Belani (in person) Mr K Jumah (in person) Mr O Ammoun (in person)
SOLICITORS:	S C Kavanagh (Plaintiff)

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	---
LOWER COURT JUDICIAL OFFICER :	Mr MR Shepherd LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

Johnson J

7 October 2005

JUDGMENT

1 JOHNSON J: These are appeals under s.56(1)(c) Crimes (Local Courts Appeal and Review) Act 2001 (“Appeal and Review Act”) by the Director of Public Prosecutions against orders made by a Magistrate at the Liverpool Local Court on 28 February 2005 dismissing charges against the Defendants, Zakaria Belani, Khodr Jumah and Omar Ammoun, that each Defendant took part in a race between vehicles on a road or road-related area contrary to s.40(1)(a) Road Transport (Safety and Traffic Management) Act 1999 (“Safety and Traffic Management Act”).

2 An appeal under s.56(1)(c) Appeal and Review Act is confined to questions of law only. The issues raised by the appeals concern the proper construction of s.40(1) Safety and Traffic Management Act and, in particular:

(a) whether the section applies only to planned or organised races and not to impromptu or unplanned races between vehicles upon a road or road-related area;

(b) whether the words “unless the written approval of the Commissioner of Police to the holding … of the race has been obtained” in s.40(1) constitute an element of the offence which the prosecution must establish beyond reasonable doubt or an exception or proviso within s.417A Crimes Act 1900 which the prosecution need not prove, but the defence may raise.

Procedural Issues in Supreme Court

3 The proceedings against the three Defendants are related and were heard together in the Local Court. Likewise, the present appeals were heard together in this Court.

4 Mr Buscombe, of Counsel, appeared for the Director at the hearing of the appeals. The Defendants were unrepresented at the hearing before me. Mr Belani made submissions resisting the relief sought by the Director. Mr Jumah and Mr Ammoun indicated that Mr Belani was speaking on their behalf and adopted the submissions made by him. Mr Belani and Mr Ammoun had been legally represented in the Local Court. I note that the Defendants were furnished with a copy of Mr Buscombe’s written submissions on 12 September 2005. On that date, Hall J adjourned the proceedings until 4 October 2005 to allow the Defendants an opportunity to obtain legal advice if they so wished.

5 Pursuant to a request filed on 16 March 2005, Mr Shepherd, Magistrate, on 17 March 2005 granted an extension pursuant to Part 51B r 6(2)(b) Supreme Court Rules until 4 July 2005 of the time within which an appeal may be instituted under the Appeal and Review Act. The application was made within 28 days of 28 February 2005, being the time allowed for bringing an appeal: s.56(2) Appeal and Review Act; Part 51B r 6(1) Supreme Court Rules. The Summonses instituting the appeals were filed in this Court on 7 June 2005. In accordance with Part 51 r 6(3)(a) Supreme Court Rules, the extension of time was referred to in the Summonses and a copy of the document signed by the Magistrate was annexed to each Summons.

6 The Defendants complained before me that they had no notice that an application for extension of time was being made to the Magistrate. However, the grant of an extension of time under the Rules is an administrative step of which the Defendants were not entitled to notice: Weekes v Lahood (1992) 10 Petty Sessions Review 4501; (Grove J, 31 July 1992, BC9201717 at page 4). There was no denial of procedural fairness to the Defendants in granting an extension of time without notice of the application being given to them: Weekes at page 4. The Court has jurisdiction to entertain the present appeals.

7 At the hearing of the appeals, Mr Buscombe read the Affidavits, in each case, of Kim Cherie Woodward sworn on 30 June and 3 August 2005. He tendered the transcript of the Local Court proceedings (Exhibit A).

8 Before me, Mr Belani sought to tender the report of a mechanic, Renzo Alessi, dated 27 August 2004. The report was not admitted into evidence in the Local Court. As will be seen, the learned Magistrate held that there was no prima facie case in each matter and dismissed the proceedings. The point was not reached where the Defendants were called upon to give or adduce evidence. The report of Mr Alessi was referred to in the Local Court (Exhibit A, transcript, 6 December 2004, pages 2-6, 28-29, 46, 52-53, 135-6). It was used in cross-examination of Sergeant Martin (Exhibit A, transcript, 6 December 2004, pages 46-7). However, the point was not reached where the report was tendered as evidence in the proceedings. It appears from the transcript that the prosecutor proposed to object to the tender of Mr Alessi’s report and the giving of expert evidence by Mr Alessi.

9 An appeal under s.56(1)(c) is confined to questions of law only. In this case, the questions of law do not involve in any way the mechanical issues apparently raised in Mr Alessi’s report. If error of law is established and the proceedings are remitted to the Local Court, it will be open to the Defendants to adduce relevant evidence in the defence case before the learned Magistrate. Whether the report itself, or evidence from Mr Alessi, is admissible will be a matter for the presiding Magistrate to decide. The report was not in evidence in the Local Court and did not appear to be relevant to consequential orders which the Court would consider making under s.59(2) Appeal and Review Act. In these circumstances, I rejected the tender of the report at the hearing of the appeal.

The Charges

10 The Court Attendance Notice with respect to each Defendant alleged an offence under s.40(1)(a) Safety and Traffic Management Act in the following terms:

“Between 10.14 pm and 10.27 pm on 27/06/2004 at Chullora, [the Defendant] did take part in a race between vehicles on a road, to wit, Hume Highway without the written approval of the Commissioner of Police to the holding of the race having been obtained.”

The Local Court Proceedings

11 The Local Court proceedings were heard on 6 December 2004 and 28 February 2005. The prosecution called evidence from six witnesses. For the purposes of this appeal, it is not necessary to recite in any detail the evidence given by prosecution witnesses in the Local Court.

12 The proceedings were dismissed by the learned Magistrate at the prima facie case stage. When adjudicating upon the evidence whether a defendant could lawfully be convicted, the learned Magistrate was required to proceed on the assumption that all the evidence of primary facts, considered at its strongest from the point of view of the case for the prosecution, is accurate (unless the evidence is inherently incredible or manifestly self-contradictory or the product of a disorderly mind): Cox v Salt (1994) 12 WAR 12 at 14-15; Amalgamated Television Services Pty Limited v Marsden (2001) 122 A Crim R 166 at 175-6 (paragraphs 48-50).

13 Two of the prosecution witnesses, Sergeant Martin and Senior Constable Cripps, gave evidence that on the evening of 27 June 2004, they were performing duties as plain-clothes police. They gave evidence of driving an unmarked vehicle in Chullora and of making observations of four vehicles travelling along the Hume Highway. It was not in contest before the learned Magistrate that each Defendant drove one of the vehicles that were the subject of police observations. Whilst the police observations were the subject of challenge during cross-examination, the observations were of the vehicles accelerating and jostling for position, changing lanes without indication, trying to get around one another, and travelling at speeds well in excess of the stipulated speed limit. The engines of the vehicles were observed to rev loudly and the vehicles to accelerate harshly. The police gave evidence of the vehicles appearing to race between intersections and traffic lights on the Hume Highway. The police gave evidence that they observed the vehicles over a total distance of 14.8 kilometres along the Hume Highway.

14 There was no evidence called in the prosecution case to establish that the Commissioner of Police had not issued a written approval for the holding of the race.

15 At the close of the prosecution case, submissions were made on behalf of the Defendants that s.40(1)(a) Safety and Traffic Management Act only applied where there was a “formal” or “organised” race and did not apply to “people who are driving along the road and then suddenly decide to then accelerate away with the vehicle next to him or her” (Exhibit A, transcript of submissions, 28 February 2005, page 1.29). The Defendants also submitted to the Magistrate that it was an element of the offence that the prosecution was required to prove that the Commissioner of Police had not issued a written approval for the holding of the race (Exhibit A, transcript of submissions, 28 February 2005, pages 4-5).

The Magistrate’s Decision

16 The learned Magistrate accepted both of the submissions advanced on behalf of the Defendants. His Honour found that there was no prima face case against the Defendants in relation to the charges and dismissed the proceedings against each Defendant.

17 In relation to the first submission of the Defendants concerning the scope of conduct that might amount to a “race” within the section, his Honour held (Exhibit A, transcript, 28 February 2005, page 164.35):

“I agree with what has been put to me by the defence in this instance in that I consider that the manner in which section 40 is couched means it is aimed at, and addressed to, formal racing, amongst other things, and not to the sort of racing that the prosecution brings to court in this case. The failure within the current legislation to contain an equivalent of Regulation 68(c), as far as I am aware the failure to contain a regulation or some provision relating to racing is fatal, I consider, in these matters.”

18 In reaching this conclusion, the learned Magistrate did not explain the degree of formality needed to be present before a “race” fell within the terms of s.40(1)(a) Safety and Traffic Management Act. Earlier in the judgment, his Honour had observed that motor vehicle racing covers a wide range of activities from a “highly organised, perhaps internationally recognised race event” to “at the other end of the scale … races that could be described as impromptu or substantially unplanned race or races where willingness to participate may be no more than an exchange of glances between drivers of adjacent vehicles on public roads” (Exhibit A, transcript, 28 February 2005, page 162.1-22). His Honour identified two categories of race – the “formally organised race” and the “impromptu or substantially unplanned race” and concluded that the present case fell within the second category (Exhibit A, transcript, 28 February 2005, page 162.30-38). His Honour concluded that an “impromptu or substantially unplanned race” could not fall within s.40(1)(a) Safety and Traffic Management Act.

19 In relation to the second submission advanced on behalf of the Defendants, his Honour accepted the submission that the prosecution was required to prove as an element of the offence that the Commissioner of Police had not issued a written approval for the holding of the race. His Honour concluded with respect to s.40(1)(a) ((Exhibit A, transcript, 28 February 2005, page 165.5):

“This is the section wherein I consider proof that a person is not within an exempt class of group of persons is a necessary element of the offence charged and therefore the prosecution carries the onus of establishing that an accused is not within such a group.
In this case there has been no reference at all within the course of the evidence to the issue of written approval or the absence of (sic) presence of written approval within the prosecution case.”

20 It is apparent from his Honour’s reasons that his conclusion with respect to the second submission influenced his decision concerning the first submission. His Honour’s conclusion on the second submission fortified his view that s.40(1)(a) only applied to “formal” or “organised” races. His Honour said (Exhibit A, transcript, 28 February 2005, page 164.9):

“The prosecution has averred in its charges that each accused took part in a race without the written approval of the Commissioner of Police. It would appear, on its face, to be ludicrous for the prosecution to be required to prove, in a case such as this, constituted by the circumstances that the prosecution rely on, to prove as an element of its charge that each accused, when engaging in this sort of street racing, did not have the written approval of the Commissioner of Police to engage in the race that the prosecution brings to court. It would just be simply ludicrous, although the prosecution submits that it does not have to, that is not an onus on it, although it has alleged that.
The charge, couched in the terms that it is, does, I consider, indicate that the absence of permission to be an element of the offence, with the prosecution carrying the onus of establishing it. I therefore consider the illogicality of the prosecution being required to prove such an element is supportive of the defence submissions that the offence of taking part in a race created by section 40 is aimed at formal motor vehicle racing and that section 40 does not apply to the sort of motor vehicle racing brought to the Court in these matters.”

21 The Director submits that the learned Magistrate erred in law in upholding each of these submissions, and then in finding no prima facie case and dismissing the proceedings against each Defendant. Before turning to the Director’s submissions in support of the appeals, it is appropriate to refer to the relevant legislation.

Section 40 Safety and Traffic Management Act

22 Section 40 lies within Division 1 of Part 3 of the Safety and Traffic Management Act. Part 3 is entitled “Speeding and Other Dangerous Driving” and Division 1 bears the heading “Speeding and Other Dangerous Driving Offences”. Contained within Division 1 of Part 3 are the following sections (with references to predecessor provisions in the repealed Traffic Act 1909):

· s. 40 – races, attempts on speed records and other speed trials (cf s.4B Traffic Act 1909);

· s. 41 – conduct associated with road and drag racing and other activities (cf s.4BA Traffic Act 1909);

· s.42 – negligent, furious or reckless driving (and driving at a speed or in a manner dangerous to the public) (cf s.4 Traffic Act 1909);

· s.43 – menacing driving (cf s.4AA Traffic Act 1909).

23 Section 40 provides as follows:

“40 Races, attempts on speed records and other speed trials

(cf Traffic Act, s 4B)
(1) A person must not organise, promote or take part in:

(a) any race between vehicles on a road or road related area, or

(b) any attempt to break any vehicle speed record on a road or road related area, or

(c) any trial of the speed of a vehicle on a road or road related area, or

(d) any competitive trial designed to test the skill of any vehicle driver or the reliability or mechanical condition of any vehicle on a road or road related area,

unless the written approval of the Commissioner of Police to the holding or making of the race, attempt or trial has been obtained.
Maximum penalty: 20 penalty units.
(2) The Commissioner of Police may:

(a) grant or refuse approval to the holding or making of a race, attempt or trial referred to in subsection (1), and

(b) impose any condition (whether of general or limited application) on the approval that the Commissioner considers necessary in the interests of public safety and convenience.
(3) A person taking part in (or the organiser or promoter) of any race, attempt or trial referred to in subsection (1) must comply with any condition imposed on an approval granted under subsection (2) in respect of the race, attempt or trial.
Maximum penalty: 20 penalty units.
(4) If a person is convicted by a court of an offence under this section in relation to a motor vehicle or trailer:

(a) except as provided by paragraph (b)—the person is disqualified from holding a driver licence by the conviction and without any specific order of a court for 12 months, or

(b) if the court at the time of the conviction thinks fit to order a shorter or a longer period of disqualification—the person is disqualified from holding a driver licence for the period specified in the order.
(5) Any disqualification under this section is in addition to any penalty imposed for the offence.
(6) This section does not apply to any test of the slow running of a vehicle.”

24 As the heading to s.40 makes clear, the provision is the statutory successor to s.4B Traffic Act 1909. Section 4B was inserted by the Motor Traffic (Amendment) Act 1937. In the course of the debate concerning the Bill, Lt–Colonel Bruxner, the Minister for Transport, said (Hansard, Legislative Assembly, 24 November 1937, page 1917 at 1925):

“There is one other clause which deals with speed contests. From time to time speed contests take place on the roads of the State, and this clause provides that any person who wishes to hold a speed contest must first obtain permission from the Commissioner of Police. This provision does not affect the ordinary reliability test which is usually carried out under strict supervision over a distance of not more than a mile, but it will affect long-distance speed contests in respect of which motorists tear through the country without any special conditions being provided to ensure the safety of the general public.”

Error of Law

25 The following principles are relevant to the types of error of law alleged in this case.

26 A finding of prima facie case involves a decision whether, on the evidence as it stands at the end of the prosecution case, the Defendant could lawfully be convicted. This is a question of law: May v O’Sullivan (1955) 92 CLR 654 at 658; Amalgamated Television Services Pty Limited v Marsden at 174-176 (paragraphs 43-50). If the Magistrate has wrongly concluded that there was no prima facie case when, in fact, there was, this is an error of law.

27 A finding of fact may reveal an error of law where it appears that the Magistrate has misdirected himself, that is, has defined otherwise than in accordance with law, the question of fact which he has to answer. An ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made: Australian Gas Light Company v Valuer-General (1940) 40 SR(NSW) 126 at 138; Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 156. The Director contends that the learned Magistrate erred in law in this way in wrongly confining the meaning of the word “race” in s.40(1)(a) Safety and Traffic Management Act.

28 The Director submits that the learned Magistrate erred in law in concluding that the closing words in s.40(1) constituted an element of the offence for the prosecution to prove and not an exception or proviso within s.417A Crimes Act 1900.

The Meaning of the Words “Any Race Between Vehicles” in s.40(1)(a) Safety and Traffic Management Act

29 The Director submits that the learned Magistrate has erred in law in unduly confining the meaning of the words “any race between vehicles” in s.40(1)(a) Safety and Traffic Management Act. In his helpful written and oral submissions, Mr Buscombe noted that the term “race” is not defined in the Safety and Traffic Management Act. He pointed to relevant dictionary definitions. The Shorter Oxford Dictionary defines “race” as:

“A contest of speed between runners, horses, vehicles, etc. A contest or competition between individuals, groups, etc, to (be first to) achieve some objective esp. Superiority.”

30 The Macquarie Dictionary relevantly defines “race” as:

“A contest of speed, as in running, riding, driving, sailing, etc. … Any contest or competition.”

31 Mr Buscombe submitted that the ordinary English meaning of the word “race” does not require any particular degree of “formality” or “organisation”. The word “race” in s.40(1)(a) is qualified by the presence of the word “any” which appears immediately before “race”. The Director submits that the presence of the word “any” dictates that the provision should be construed to cover all types of “races” irrespective of the degree of formality or organisation attaching to them. It is submitted that the presence of the word “any” in the provision is the clearest possible indication from the legislature that it intended that all races, whatever their description, would be caught by the provision.

32 Mr Buscombe submits that there is nothing in the legislative history concerning s.40(1)(a) or its statutory predecessor, s.4B Traffic Act 1909, which supports a narrow construction of the provision applying only to races which have a particular degree of formality or organisation. He submits that the passage from the 1937 speech of the Minister during the parliamentary debates set out in paragraph 24 above does not support a construction being given to the word “race” in s.40(1)(a) which is other than the ordinary meaning of the word: s.34 Interpretation Act 1987.

33 The learned Magistrate made reference to repealed clause 68(1)(c) Motor Traffic Regulations 1935 which provided:

“Passing and overtaking
68(1) The driver of a motor vehicle upon a public street:
…
(c) shall not race with or endeavour to pass by unnecessarily fast driving, any vehicle.”

34 Regulation 68(1)(c) was omitted by the Motor Traffic Regulations Amendment (Heavy Vehicles and Miscellaneous Matters) Regulation 1996, the objects of which were said to include the making of minor amendments by way of statute law revision to repeal provisions that are no longer required.

35 Insofar as the learned Magistrate appears to have placed some reliance upon the repeal of clause 68(1)(c) Motor Traffic Regulations 1935 in reaching his decision concerning the scope of the expression “any race” in s.40(1)(a), the Director submits that his Honour has fallen into further error. Mr Buscombe submits that the repeal of clause 68(1)(c), which occurred well before the commencement of the Safety and Traffic Management Act in 1999, provides no basis for construing s.40(1)(a) in a restrictive manner. He submits that s.40(1)(a) should be construed according to the ordinary meaning of the words used and having regard to the legislative purpose behind the provision. When that is done, the Director submits that there is no qualification on the scope of the provision which would result in it being restricted to races having a particular degree of formality or organisation.

36 In the Local Court, the Defendants relied upon the following passages in a text book by Douglas Brown, “Traffic Offences”, 1st edn, Butterworths, 1983 at page 282:

“Racing
12.16 There are two kinds of racing. First, there is unorganized racing, where, for example, without prior planning two motorists engage in a race to beat each other. Such driving comes under the category of dangerous driving and is not generally identified as being racing in the traffic regulations. Secondly, there is organized racing, where a number of cars set out to compete with each other over a specified and known route.

By s 4B(1)(a), Motor Traffic Act 1909 (NSW) it is an offence to organize, promote or take part in motor races; by s 4B(1)(b) the commissioner of police has power to permit the holding of a race, attempt to break a speed record or trial of a motor vehicle. By reg 68(c), Motor Traffic Regs 1935 (NSW) the driver of a motor vehicle upon a public street shall not race with or endeavour to pass, by unnecessarily fast driving any other vehicle.”

37 His Honour reproduced these passages in their entirety in his judgment and appears to have found them persuasive in constructing a dichotomy between “organised racing” and “unorganised racing”. His Honour’s reliance upon clause 68(1)(c) of the Regulations appears to have had its origin as well in this text book extract.

38 The Defendants relied upon the submissions made on their behalf in the Local Court, and the learned Magistrate’s reasoning, in support of the argument that no error was revealed in his Honour’s restriction of s.40(1) to planned or organised races only.

39 Mr Buscombe submits that his Honour has placed undue, and indeed mistaken, reliance upon passages in a text book which, of course, is neither a statute nor a judicial decision. I agree with this submission. I note, in any event, that the second edition (“Traffic Offences”, Butterworths, 1988) and the third edition (“Traffic Offences and Accidents”, Butterworths, 1996) of Mr Brown’s text book contain no reference to racing or any reference to s.4B Traffic Act 1909. It appears that the learned author has removed completely from the second and third editions of his text book the passages concerning racing upon which the Defendants and the learned Magistrate placed considerable reliance in the Local Court.

40 In my opinion, the reference to an out-of-date edition of Mr Brown’s text book served to distract the learned Magistrate from the real question – the proper construction of s.40 Safety and Traffic Management Act in its statutory context. I now turn to consider that issue.

41 The contemporary approach to statutory interpretation is literal but not literalistic and requires words to be construed in their total context: Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 at 141 (paragraph 115). In Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ said at 384 (paragraph 78):

“However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

Are there features of s.40, viewed in its statutory context, which indicate that the words “any race between vehicles” ought be given a meaning other than the literal or grammatical meaning of the words?

42 There is no express statement within s.40 which confines the terms “any race between vehicles” to a formal or organised race. If Parliament had intended that s.40 ought be so confined, such a result could be readily achieved by express words. No such words appear in the section.

43 There is nothing in other provisions within Division 1 of Part 3 or elsewhere in the Safety and Traffic Management Act which suggests that s.40 ought be so confined.

44 Upon the reasoning of the learned Magistrate, an informal or unorganised or impromptu road race could not lie within s.40 and, presumably, such conduct could only be met by prosecution within Division 1 of Part 3 for an offence of negligent, furious or reckless driving or driving at a speed or in a manner dangerous to the public contrary to s.42 of the Act. There is no provision within ss.40 or 42 which suggests that those sections are mutually exclusive. Nor is there a provision which states that a person who has been convicted of an offence under s.42 may not be convicted of an offence under s.40 (or vice versa) arising directly or indirectly out of the same circumstances or out of a single incident. I note that ss.38(2) and 43(5) Safety and Traffic Management Act make such provision with respect to other offences. Where the statute, from time to time, uses such a device to confine liability to conviction to a particular offence arising from a single incident, the absence of such a provision within ss.40 and 42 of the Act is not irrelevant.

45 If a person was prosecuted for offences under s.40(1)(a) and s.42 arising out of the same incident, a question may arise as to whether the person could be put in jeopardy twice for the same conduct. In Environment Protection Authority v Australian Iron & Steel Pty Limited (1992) 28 NSWLR 502, Gleeson CJ (Carruthers and Smart JJ agreeing) said at 507-508:

“Where an Act of Parliament makes a certain type of conduct an offence, and imposes a penalty, the offence will usually be characterised in terms of a certain quality or attribute that may be attached to primary facts. Different statutes may fasten upon different qualities or attributes of the same set of
primary facts to create separate offences. To assert that a person may not be convicted of multiple offences for the same facts invites a request for a more precise definition of the relevant facts.

…

Where two or more different statutory prohibitions apply to the same set of primary facts, this will often be because each prohibition fastens upon some different aspect of those facts and makes it the gist or gravamen of the offence. It may be that one particular feature of the facts is immaterial for the purpose of one prohibition and material for another.
It is commonplace that, by reason of the nature of the regulatory schemes that are established by certain types of legislative provision or administrative action, there are some kinds of conduct which almost inevitably involve participants in multiple breaches of the law.”

I raise these principles to emphasise the conclusion that ss.40 and 42 are not mutually exclusive provisions either by operation of the statute or by application of common law principles.

46 It is necessary then to return to the words in s.40. In the absence of express provision within s.40 or elsewhere in the Safety and Traffic Management Act, do the words and subject matter of s.40 lead to a narrow construction of the words “any race between vehicles” so as to confine them to an organised or formal race only?

47 It appears that the learned Magistrate was fortified in this narrow construction by the reference in s.40(1) to written approval of the Commissioner of Police. It is clear from the words in s.40 that the provision extends to an organised race of the type where approval of the Commissioner of Police may be sought and granted. However, the fact that the section applies clearly to such circumstances does not mean that it is confined to those circumstances.

48 Section 40(1) provides that a person must not “organise, promote or take part in” the specified activities including “any race between vehicles on a road or road related area”. Section 40(1) penalises three different acts and thus creates three separate offences of organising, promoting or taking part in the conduct referred to thereafter in the section: Romeyko v Samuels (1972) 2 SASR 529 at 552; R v Manwaring (1983) 2 NSWLR 82 at 87-88.

49 Ought the general words “take part in … any race between vehicles” be read down having regard to the statutory context in which they appear? In Deputy Commissioner of Taxation v Clark, Spigelman CJ (Handley and Hodgson JJA agreeing) said at 143 (paragraph 127):

“The process of reading down general words in a statute is a frequently recurring issue in statutory interpretation. (See, for example, the authorities I referred to in R v Young (1999) 46 NSWLR 681 at 689 [23]–[29].) Application of the ejusdem generis rule is a specific example of this process. The application of this rule, in substance, gives the immediate verbal context determinative weight in the process of construing general words. In my opinion, this is rarely justified. Whether or not general words ought be read down is to be determined by the whole of the relevant context, including other provisions of the statute and the scope and purpose of the statute.”

50 For the ejusdem generis rule to have application, it is essential that some common characteristic capable of being described as a genus is able to be identified: Deputy Commissioner of Taxation v Clark at 143 (paragraph 126). I do not consider that such a genus is identified with respect to the words “organised, promote or take part in” so as to confine, in some way, the words “take part in” to an organised race between vehicles. As stated earlier, I consider that s.40(1) creates three separate offences and the nature of the first and second offences (organise or promote) does not confine or read down the third offence (take part in).

51 I do not consider that the earlier existence, and then repeal, of clause 68(1)(c) Motor Traffic Regulations 1935 bears upon the proper construction of s.40 Safety and Traffic Management Act. Clause 68(1)(c) cannot be seen, in some way, to have covered the field of offences with respect to unplanned or impromptu street racing. It was one of a number of offences which may have applied to a given set of facts. The repeal of the provision is irrelevant to the construction of s.40 and the resolution of the issues to be determined in these appeals.

52 In my view, the words “take part in … any race between vehicles” in s.40(1) Safety and Traffic Management Act ought be given their ordinary meaning. I accept the submissions of the Director in this respect. The words are not confined expressly to persons taking part in organised or planned races. Nor does such a restricted construction arise by implication from the terms of s.40 viewed in its statutory context. In my opinion, s.40(1) can apply to an impromptu or unplanned race between vehicles of the type alleged to have occurred in this case.

53 Even if it be the case (and I do not think it is) that the word “race” in s.40(1)(a) is open to two competing constructions, namely a narrow construction (a planned race only) or a broad construction (any race between vehicles), then a construction which confined the section to a planned race only would not promote the purpose or object underlying the section: s.33 Interpretation Act 1987. The learned Magistrate’s construction injects a significant level of uncertainly into the provision. What degree of planning is required before the race is a planned or organised race? The international motor racing event is a clear example. But what of less organised events? Where is the line to be drawn? In my opinion, this aspect points strongly in favour of the words “any race between vehicles” in s.40(1) being accorded their ordinary meaning.

54 The learned Magistrate erred in law in holding to the contrary. There was a prima facie case with respect to this element of the offence.

55 The Director has succeeded in demonstrating that the learned Magistrate erred in law in confining the phrase “any race between vehicles” in s.40(1)(a) to a planned or organised race only.

Absence of Approval of Commissioner of Police – An Element or an Exception?

56 Mr Buscombe submits that the learned Magistrate erred in law in concluding that the onus lay upon the prosecution to prove that no written approval had been given by the Commissioner of Police for the race. He submitted that this was an exception or proviso falling within s.417A Crimes Act 1900. It does not appear that reference was made to s.417A during argument in the Local Court, although the prosecutor submitted that the approval issue constituted a proviso which was a matter for the defence to raise (Exhibit A, transcript of submissions, 28 February 2005, page 8.23).

57 Section 417A Crimes Act 1900 provides as follows:

“417A Proof of exceptions

(1) Any exception, exemption, proviso, excuse or qualification to the offence (whether or not it is in the same provision with a description of an offence in an Act or statutory rule or document creating the offence) need not be specified or negatived in an indictment or other process commencing proceedings.
(2) The exception, exemption, proviso, excuse or qualification may be proved by the accused person.
(3) If the exception, exemption, proviso, excuse or qualification is specified or negatived in the indictment, court attendance notice or other process commencing proceedings, the prosecutor is not required to prove it.”

58 The construction and application of s.145A(2) Justices Act 1902, the statutory predecessor to s.417A, have been considered in a number of decisions in this State: Ex parte Ferguson; re Alexander (1945) 45 SR(NSW) 64; Francisv Flood (1978) 1 NSWLR 113; Phillips v Cassar (1979) 2 NSWLR 340; Lynch v Attwood (1983) 3 NSWLR 1.

59 Mr Buscombe relied upon the decision of the High Court of Australia in Chugg v Pacific Dunlop Limited (1990) 170 CLR 249, where consideration was given to the Victorian equivalent of s.417A Crimes Act 1900. The analysis of Dawson, Toohey and Gaudron JJ in Chugg provides direct assistance to the resolution of the present question. The starting point is the duty of the prosecution to prove a defendant’s guilt and to establish the elements of the offence, subject to any statutory exception: Chugg at 257. The question here is whether the words “unless the written approval of the Commissioner of Police to the holding or making of the race … has been obtained” in s.40(1) constitute a statutory exception.

60 In Chugg, Dawson, Toohey and Gaudron JJ said at 257:

“For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an ‘exception’), which serves to take a person outside the operation of a general rule. See Vines v Djordjevitch (1955) 91 CLR 512, at 519-520. The distinction does not depend on the rules of formal logic: Dowling v Bowie (1952) 86 CLR 136, at 147. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention ‘to impose upon the accused the ultimate burden of bringing himself within it’: Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 64 ALJR 181, at 183; 91 ALR 1, at 6. The intention may be discerned from express words or by implication. See Reg v Edwards [1975] QB 27 and Reg v Hunt [1987] AC 352.”

61 To some extent, the question whether there is a legislative intention to impose the onus of proof of some particular matter on a defendant is answered by s.417A Crimes Act 1900. This provision leaves the question whether the matter in issue is an exception to be answered by the ordinary process of statutory construction: Chugg at 257-8. Dawson, Toohey and Gaudron JJ in Chugg at 258 identified matters relevant to this process of statutory construction:

“… if a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof.
Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined ‘upon considerations of substance and not of form’: Dowling v Bowie (1952) 86 CLR 136 at 140. And, of course, the necessity to have regard to substantive and not merely formal considerations is emphasized by the words of s168(1) of the Magistrates (Summary Proceedings) Act and like legislative provisions which make it clear that a matter may be classified as a statutory exception ‘whether it does or does not accompany the description of the offence’.
One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. See Darling Island Stevedoring and Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635, per Dixon J at 644. Such is ordinarily the case where, in the terms used in Reg v Edwards [1975] QB 27 at 40, there is a prohibition on the doing of an act ‘save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities’. See Reg v Hunt [1987] AC 352 at 375, where Lord Griffiths considered the statement from Reg v Edwards ‘an excellent guide to construction’. If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.”

Section 168(1) Magistrates (Summary Proceedings) Act 1975 (Vic) , which is referred to in this passage, was the Victorian equivalent to s.417A Crimes Act 1900 .

62 Mr Buscombe submitted that the application of the principles in Chugg to s.40(1)(a) leads to the conclusion that the relevant words constituted an exception or proviso within s.417A Crimes Act 1900. He submitted that the form of s.40(1)(a) supported such a finding in that the matter is introduced by the word “unless”. He submitted that the word “unless” is defined in The Shorter Oxford Dictionary to mean “except when”, and thus was a word denoting an exception. He submitted that, as a matter of substance, the provision ought be construed as an exception or proviso. Section 40(1)(a) relevantly creates a general prohibition on taking part in “any race between vehicles” on a road save in circumstances when persons have obtained permission from a specified authority, that is, the Commissioner of Police. It was submitted that the principles in Chugg suggest that generally such matters should be construed as exceptions or provisos, and not elements of the offence.

63 The Defendants submitted that the learned Magistrate was correct in reaching the conclusion that this aspect was an element of the offence for the prosecution to prove. Reliance was placed upon the submissions made in the Local Court on their behalf and his Honour’s reasoning in support of such a conclusion.

64 In my view, the relevant words constitute an exception or proviso within s.417A Crimes Act 1900. The fact that the exception or proviso was specified in the Court Attendance Notice did not elevate that aspect into an element of the offence as to which the prosecution bore the onus of proof. So much is clear from s.417A(3). I accept the Director’s submissions with respect to the proper construction of s.40(1) and the application of the principles in Chugg to that provision.

65 Accordingly, I am satisfied that the Director has established error of law on the part of the learned Magistrate in his conclusion that this matter was an element of the offence for the prosecution to prove rather than an exception or proviso within s.417A Crimes Act 1900 which may be proved by the Defendants: s.417A(2).

Relief

66 I am satisfied that error of law has been demonstrated on the part of the learned Magistrate in dismissing the charges against the Defendants. The Director submits that, error of law having been established, the appropriate course is to set aside the orders dismissing the proceedings and to order that the matters be remitted to the Local Court to be heard and determined according to law: s.59(2)(a) Appeal and Review Act.

67 Mr Belani referred to the history of the matters before the Local Court and this Court and the cost incurred and time expended by the Defendants in meeting the charges in the Local Court and the appeal in this Court. He submitted that the matters should be brought to an end in this Court.

68 I have found that the learned Magistrate erred in law in his conclusion that there was no prima facie case and that the proceedings ought be dismissed. I consider that the appropriate course is to remit the matter to the Local Court to enable that Court, as the trial Court, to hear and determine the matters according to law. Such an approach is consistent with the proper relationship between the Supreme Court and the Local Court in statutory appeals with respect to criminal matters: Council of the City of Lake Macquarie v Morris [2005] NSWSC 387 at paragraph 65. It will be a matter for the learned Magistrate, at the resumed hearing, to hear and determine the matters and to conclude whether he is satisfied beyond reasonable doubt of the guilt of the Defendants having regard to all the evidence, including any evidence which the Defendants elect to give or adduce.

Costs

69 Mr Buscombe submitted that, in the event that the appeals succeeded, the Defendants ought be ordered to pay the Plaintiff’s costs of the proceedings, but ought be granted certificates under the Suitors’ Fund Act 1951. He informed the Court that, if such an order was made, the Director undertakes not to enforce the order for costs against the Defendants personally to the extent that any costs may not be caught by the certificates under the Suitors’ Fund Act 1951.

70 The Defendants submitted that, in the event that the appeal succeeded, no order for costs should be made against them given the history of the matter.

71 I have concluded that the submissions made on behalf of the Defendants in the Local Court led the learned Magistrate into error. The Defendants have appeared in this Court and have resisted the appeal, relying again upon the submissions advanced in the Local Court. In all the circumstances, I consider that the appropriate order is that the Defendants pay the Director’s costs of the proceedings, but that they be granted certificates under the Suitors’ Fund Act 1951.

Orders

72 In each of the three appeals, I make the following orders:

(a) Pursuant to s.59(2) Appeal and Review Act, I set aside the order made at Liverpool Local Court on 28 February 2005 dismissing a charge against the Defendant of take part in a race between vehicles contrary to s.40(1)(a) Safety and Traffic Management Act.

(b) I declare that the Magistrate erred in law as to the proper construction and application of s.40(1)(a) Safety and Traffic Management Act in concluding that impromptu street racing could not constitute a “race” within the meaning of s.40(1)(a) Safety and Traffic Management Act.

(c) I declare that the Magistrate erred in law in determining that the absence of written approval from the Commissioner of Police as to the holding of the race was a necessary element of an offence under s.40(1)(a) Safety and Traffic Management Act and that the prosecutor was required to prove this element before an offence could be made out.

(d) I order that the proceedings be remitted to the Local Court at Liverpool to be heard and determined according to law.

(e) I order the Defendant to pay the costs of the Director of these proceedings, but grant to the Defendant a certificate under s.6 Suitors’ Funds Act 1951 .

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