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Dolheguy v Becker

Dolheguy v Becker

Case [2009] VSC 106 27 March 2009

Statutory Construction

Criminal Liability

Statutory Interpretation

Criminal Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 10043 of 2007

PETER DOLHEGUY	Plaintiff
v
CONRAD BECKER	First Defendant
and
COUNTY COURT OF VICTORIA AT GEELONG (HIS HONOUR JUDGE CHETTLE)	Second Defendant

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JUDGE:	Kyrou J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2009
DATE OF JUDGMENT:	27 March 2009
CASE MAY BE CITED AS:	Dolheguy v Becker
MEDIUM NEUTRAL CITATION:	[2009] VSC 106

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Road Safety Act 1986 (Vic), ss 28(1) and (6), 66(1), (3) and (6) – owner of motor vehicle found guilty of exceeding the speed limit by more than 35 kilometres per hour in reliance on speed camera – whether s 28(6) precludes suspension of licence under s 28(1) – interrelationship of ss 28(6) and 66(6).

Principles of statutory interpretation – purposive approach – principle that all words in a statute must be given some meaning and effect – principle that general provision is subject to specific provision – principle that most recent provision prevails – principle that ambiguity in a penal statute is to be resolved in favour of accused – principle of implied repeal of a statutory provision – use of extrinsic material – second reading speech.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Priest QC with Mr R Taylor	DLA Phillips Fox
For the First Defendant	Mr S Hardy	The Law Offices of Barry Fried
No appearance for the Second Defendant

TABLE OF CONTENTS

Introduction and summary................................................................................................................... 1

Facts, procedural history and relevant statutory provisions.............................................................. 1

Parties’ submissions............................................................................................................................. 5

Decision................................................................................................................................................. 7

History, purpose and effect of s 28(6) of RS Act when enacted...................................................... 7
History, purpose and effect of s 66 of RS Act prior to enactment of s 66(6).................................... 7
Interrelationship between ss 28(6) and 66 of the RS Act before enactment of s 66(6)..................... 8
History, purpose and effect of s 66(6) of RS Act.............................................................................. 8
Interrelationship of ss 28(6) and 66(6) of RS Act........................................................................... 10

Principles of statutory interpretation without reference to extrinsic material........................ 10
Purposive approach to statutory interpretation............................................................................. 10
Principle that all the words of a statutory provision must be given effect........................................ 11
Principle that general provisions are subject to specific provisions................................................. 12
Principle of implied repeal of legislation....................................................................................... 12
Principle that most recent statutory provision prevails................................................................. 13
Principle that ambiguity in a penal statute should be resolved in favour of an accused.................... 14
Effect of extrinsic material....................................................................................................... 14
Conclusion on interrelationship of ss 28(6) and 66(6) of the RS Act....................................... 15

Proposed order.................................................................................................................................... 15

HIS HONOUR:

Introduction and summary

This is an application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) in relation to a decision by the County Court made on 19 October 2007 to convict the first defendant, Conrad Becker, of a speeding offence and impose a fine of $500 without making any order in relation to his driver licence.

The plaintiff in this proceeding is Peter Dolheguy, the police informant. The second defendant is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dolheguy v Becker

Details

AGLC: Dolheguy v Becker [2009] VSC 106
Case: [2009] VSC 106
Decision Date: 27 March 2009

CaseChat Overview and Summary

In the case of Dolheguy v Becker, the defendant was found to have exceeded the speed limit by more than 35 kilometres per hour, as determined by a speed camera. The dispute arose as to whether the statutory provisions precluded the suspension of the defendant's licence. The case was heard in the Supreme Court of Victoria. The primary legal issue for the court to decide was whether section 28(6) of the Road Safety Act 1986 (Vic) precludes the suspension of a licence under section 28(1) when the offence is detected by a speed camera. Additionally, the court needed to determine the interrelationship between sections 28(6) and 66(6) of the Act.

The court applied a purposive approach to statutory interpretation, ensuring that all words in the statute were given meaning and effect. It found that the general provision of section 28(1) was subject to the specific provision of section 28(6). The court also considered the principle that the most recent provision prevails and that any ambiguity in a penal statute is to be resolved in favour of the accused. The court found that section 66(6) impliedly repealed the previous provisions, and therefore, the suspension of the defendant's licence was not precluded by section 28(6). The court also considered the second reading speech to understand the purpose of the statute.

The court held that the defendant's licence could be suspended under section 28(1) of the Road Safety Act 1986 (Vic), despite the offence being detected by a speed camera. The court found that section 66(6) impliedly repealed the previous provisions, and therefore, the suspension of the defendant's licence was not precluded by section 28(6). The court also found that the purposive approach to statutory interpretation supported the suspension of the defendant's licence. The court noted that the principle of implied repeal of a statutory provision was relevant in this case, and the use of extrinsic material, such as the second reading speech, was useful in understanding the purpose of the statute.

Orders