Emily Louise Slawson v Damien Kinnane

[2013] ACTSC 3

EMILY LOUISE SLAWSON v DAMIEN KINNANE
[2013] ACTSC 3 (14 January 2013)

APPEAL AND NEW TRIAL – jurisdiction, practice and procedure – appeal from Magistrates Court – appeal against conviction ­– where appellant entered plea of guilty –
R v Forde [1923] 2 KB 400 – no deliberate withholding of issue for appeal.

APPEAL AND NEW TRIAL – appeal against conviction – offences of driving while licence suspended – Aziz v Saliba [2013] ACTSC 2 – section 32(2) not applicable to breach of immediate suspension notice – appeal upheld.

TRAFFIC LAW – offences – where alternative offences available for driving contrary to an immediate suspension notice – implied repeal of general provision.

Legislation Act 2001 (ACT), s 191
Magistrates Court Act 1930 (ACT), pt 3.10, s 208(1)(b)
Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 35
Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 (ACT)
Road Transport (Driver Licensing) Act 1999 (ACT), s 32
Road Transport (General) Act 1999 (ACT), ss 61B, 61C, 64, 69

Aziz v Saliba [2013] ACTSC 2
Gee v Hulbert [2002] ACTSC 118
Liberti v The Queen (1991) 55 A Crim R 120
Meiklejohn v Central Norseman Gold Corporation Ltd (1998) 19 WAR 298
Mitchell v The Queen [2009] NSWCCA 95
R v Coffey (2003) 6 VR 543
R v Ditroia [1981] VR 247
R v Forde [1923] 2 KB 400
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Travini v Starczewski (2009) 169 ACTR 1

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 50 of 2012

Judge:             Refshauge J
Supreme Court of the ACT

Date:              14 January 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 50 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

EMILY LOUISE SLAWSON

Appellant

v

DAMIEN KINNANE
  Respondent

ORDER

Judge:  Refshauge J
Date:  14 January 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is upheld.

1. The conviction and sentence imposed on Emily Louise Slawson on 27 June 2012 are set aside.

1. A verdict of acquittal is entered on the charge of, as a first offender, driving on 18 April 2012 while her licence was suspended by law.

1. These proceedings involve an important point of statutory interpretation in the context of the regulation of driving on Territory roads.

THE FACTS

1. On 21 January 2012, Ms Emily Louise Slawson was issued with a notice under s 61B of the Road Transport (General) Act 1999 (ACT) (the General Act); the notice is commonly referred to as an “immediate suspension notice”.  The notice, inter alia, prohibits the recipient from driving a motor vehicle during the currency of the notice.  In this case, the notice remained current until 20 April 2012.

1. On 18 April 2012, Ms Slawson was driving along Morshead Drive, Duntroon, when she was stopped by police.  She was unable to produce a driver licence as, when the immediate suspension notice was issued, she was required to, and did, surrender her licence to police.

1. As a result, she was charged with, being a first offender, driving while her licence was suspended by law, an offence contrary to s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (the Driver Licensing Act).

PROCEEDINGS IN THE MAGISTRATES COURT

1. Ms Slawson appeared in the Magistrates Court on 24 May 2012 and on 14 June 2012 entered a plea of guilty to the charge.  On 22 June 2012, she was convicted, fined $250 and ordered to pay $50 criminal injuries compensation levy and $10 victim services levy.  By force of the conviction, she was disqualified from holding or obtaining a licence for 12 months.

THE APPEAL TO THIS COURT

1. On 3 July 2012, Ms Slawson appealed against the conviction and sentence that had been imposed.  The grounds of the appeal were:

(a)There has been a miscarriage of justice.

Particulars

i.The Appellant was charged in a manner that exposed her to a penalty greater than that specifically enacted for by the legislature.

ii.The Appellant was exposed to double punishment.

(b)The Director of Public Prosecutions acted unlawfully by bringing and/or maintaining a charge that was incompatible with the Appellant’s Human Rights.

(c)The sentence is manifestly excessive.

Particulars

i.The Appellant was charged in a manner that exposed her to a penalty greater than that specifically enacted for by the legislature.

Jurisdiction

1. Part 3.10 of the Magistrates Court Act 1930 (ACT) provides for this Court to exercise jurisdiction in appeals from the Magistrates Court to which that Part applies. Under s 208(1)(b), the Part applies to appeals from convictions such as was entered in the proceedings against Ms Slawson.

1. Such an appeal is by way of a rehearing:  Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 at [78]. This is, however, not a case where this Court is required to review the evidence in the Magistrates Court and the matter is a question of law, namely, whether Ms Slawson could properly have been convicted of the offence with which she was charged.

1. Ms Slawson pleaded guilty to the offence in the Magistrates Court.  That does not necessarily prevent a person from appealing against the conviction as is now the case in every State and Territory in Australia.  See the authorities I have cited in Travini v Starczewski (2009) 169 ACTR 1 at 9; [38].

1. As Callaway JA, with whom Buchanan and Eames JJA agreed, said in R v Coffey (2003) 6 VR 543 at 545–6; [6]:

The ground of appeal against conviction reflects a line of cases beginning with R v Forde [[1923] 2 KB 400], in which the judgment of the English Court of Criminal Appeal was delivered by Avory J. His Lordship said [at 403]:

A plea of Guilty having been recorded, this Court can only entering an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged.

Those alternatives have not, in this State, been regarded as exhaustive.  The Court of Appeal retains a duty to intervene if there has been a miscarriage of justice [Crimes Act 1958 (Vic), s 568(1)]. The same view has been expressed in New South Wales [R v KCH (2001) 124 A Crim R 233 at [32]]. The authorities are discussed in R v Tait [[1996] 1 VR 662 at 665–6], R v Parsons [[1998] 2 VR 478 at 482–3] and R v El-Kotob [(2002) 4 VR 546 at
[78]–[89]].  There is a strong public interest in restricting appeals against a conviction following a deliberate plea of guilty [R v Liberti (1991) 55 A Crim R 120 at 122].

1. The central principles in R v Forde [1923] 2 KB 400 have been widely adopted and may be accepted as applicable here. They may, however, be subject to a caveat expressed by Kirby P, nonetheless citing them with approval in Liberti v The Queen (1991) 55 A Crim R 120 at 121–2, that courts approach such an issue “with caution bordering on circumspection”. This caveat was adopted by Higgins J (as his Honour then was) in Gee v Hulbert [2002] ACTSC 118 at [19]–[20].

1. The respondent submitted that the appellant should be denied entitlement to appeal since she had not raised the question of a stay in the Magistrates Court.  Reliance was placed on what was said in R v Ditroia [1981] VR 247 at 252, namely, that “[i]t is impermissible to withhold an argument from presentation at the time when reliance should be placed on it and then in appellate proceedings, if the trial result is adverse, to raise the point for the first time.”

1. While this may be accepted, there is no suggestion that any thought had been given to the issues raised on appeal here when the proceedings were conducted at first instance.  The respondent submitted that “[i]t would appear that the appellant has engaged in a deliberate tactic of withholding an issue that should have been raised at first instance.  This is the only inference that can be drawn.”

1. I reject that.  Ms Slawson pleaded guilty in the Magistrates Court.  The result had inevitably, therefore, to be adverse.  She could not be said in any sense to be “keeping her powder dry” for an appeal, since the outcome that she now challenges, namely a finding of guilt and a conviction, was inevitable upon her plea.  She could not have been awaiting the outcome to see whether it was worth appealing.

1. I note that she is represented by different counsel on appeal and, indeed, seems also to have changed her solicitors.  That different representation may have led to a new argument being considered and developed in the appeal does not imply a deliberate withholding of an issue that should not then be permitted to be taken on appeal.

1. In the circumstances, this Court may consider the matter.  If there is, indeed, a miscarriage of justice, then the appeal should be allowed.

The issue of ‘double punishment’

1. Mr M Kukulies-Smith, who appeared for Ms Slawson, submitted that the prosecution, in choosing to prosecute Ms Slawson under s 32 of the Driver Licensing Act, had improperly exposed her to double punishment.

The prohibition against ‘double punishment’

1. Double punishment, that is punishment twice for the same acts, may be accepted as prohibited. Section 191 of the Legislation Act 2001 (ACT) makes that plain. It provides:

(1) If an act or omission by a person is an offence against 2 or more ACT laws, the person may be prosecuted for and convicted of any of the offences, but is not liable to be punished more than once for the act or omission.

(2)       If -

(a) an act or omission by a person is an offence against both an ACT law and a law of another jurisdiction;  and

(b) the person has been punished for the offence against the law of the other jurisdiction;

the person is not liable to be punished for the offence against the ACT law.

1. This is consistent with the common law.  Anderson J, with whom Walsh and Owen JJ agreed, said in Meiklejohn v Central Norseman Gold Corporation Ltd (1998) 19 WAR 298 at 314:

The common law rule against double punishment is very strong:  see Johnson v Needham [1909] 1 KB 626; Johnson v Miller (1937) 59 CLR 467; Byrne v Baker [[1964] VR 443] (at 454–8); Broken Hill Associated Smelters Pty Ltd v Stevenson [(1991) 42 IR 130] (at 145–6); R v O’Loughlin; Ex parte Ralphs [(1971) 15 ASR 219].  I think it would require clear legislative language to displace it.

The prohibition in the road transport legislation context

1. That was recognised in the provisions that introduced the immediate suspension notice, namely the Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 (ACT) (the Amending Act).  That legislation amended various of the road transport legislation.  It inserted a new Part to the General Act which created immediate suspension notices which had to be issued to persons whom a police officer believed on reasonable grounds had committed an immediate suspension offence, namely, of offences under certain sections of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act) which prohibit driving with the prescribed concentration of alcohol or under the influence of intoxicating liquor or a drug, and refusing to provide a blood sample or undergo a breath test.

1. Such notices prohibited the person to whom they were issued from driving for the period set out in the section, but up to a maximum of 90 days from the date of issue.

1. The new Part in the General Act also provided for sanctions to ensure the integrity of the regime. In particular, it inserted within the Part, s 61C as follows:

(1)       A person commits an offence if—

(a)the person has been served with an immediate suspension notice;  and

(b)       the notice has not ceased to have effect; and

(c)the person contravenes section 61B (4) (d) or section 61B (4) (e), whichever applies.

Maximum penalty:  20 penalty units.

(2)       An offence against this section is a strict liability offence.

1. It also amended the Alcohol and Drugs Act by inserting a new s 35 into that Act which provided that any period of suspension of an entitlement to drive effected by the issuing of an immediate suspension notice would be applied in reduction of the suspension or disqualification of a driver licence that was applied when the person was convicted of the immediate suspension offence.

1. The Explanatory Statement for the Bill that became the Amending Act recognised that this was an expression of the prohibition on double punishment. It said (at 26–7) that the purpose of s 35 of the Alcohol and Drugs Act was “to ensure that [a] person is not, in effect, punished twice by being excluded from driving for a double period of time for a drink driving offence.”  If, however, a person did not comply with the immediate suspension notice, then the reduction would not apply.

1. The appellant submitted that this clearly showed that the legislature’s intention was to ensure that, where a person is charged with a drink driving offence and issued with an immediate suspension notice, they not be subject to two periods of disqualification for the one offence: the first period being the period for which the person’s licence was disqualified by the immediate suspension notice at the time of the alleged offence and the second period being the disqualification period handed down by the Court at sentencing.

Interaction with s 32 of the Driver Licensing Act

1. The section under which Ms Slawson was convicted, however, included its own additional disqualification from driving. Section 32 of the Driver Licensing Act relevantly provides:

(2)A person whose Australian driver licence is suspended by a court in Australia or under the law of any jurisdiction must not—

(a)drive a motor vehicle on a road or road related area during the period of suspension except in accordance with a restricted licence issued to the person; or

(b)apply for a driver licence during the period of suspension and in, or in relation to, the application omit to mention the suspension.

Maximum penalty:

(a)for a first offender—50 penalty units, imprisonment for 6 months or both; or

(b)for a repeat offender—100 penalty units, imprisonment for 1 year or both.

...

(5)If a court convicts a person of an offence against subsection (1), (2) or (3), the person is automatically disqualified from holding or obtaining a driver licence—

(a)for a first offender—for 12 months or, if the court orders a longer period, the longer period; or

(b)for a repeat offender—for 24 months or, if the court orders a longer period, the longer period.

1. What the appellant appeared to be submitting was that if there was a prosecution under s 32(2) of the Driver Licensing Act, there would be three periods of disqualification whereas a prosecution under s 61C of the General Act would result in only two.  This comes about as follows:

Prosecution under s 32	disqualifications
immediate suspension notice (s 61B General Act)	maximum 3 months;
breach of immediate suspension notice (s 32, Driver Licensing Act)	minimum 12 months
immediate suspension offence (various sections, Alcohol and Drugs Act)	various periods from 3 months to 5 years and, possibly, until a court sets aside an indeterminate disqualification
Prosecution under s 61C	disqualifications
immediate suspension notice (s 61B General Act)	maximum 3 months
immediate suspension offence (various sections, Alcohol and Drugs Act)	various periods from 3 months to 5 years and, possibly, until a court sets aside an indeterminate disqualification

1. This, however, does not recognise that under s 64 of the General Act, the Court may, on conviction for an offence against the road transport legislation, disqualify the convicted person for holding or obtaining a licence for the period the Court considers appropriate. Thus, there could be a third period of disqualification even where the prosecution is taken for an offence under s 61C, though, unlike the situation where prosecution proceeds under s 32, it is not certain and automatic.

1. Mr Kukulies-Smith further contended that this was aggravated by the operation of s 69 of the General Act which required multiple disqualifications to be cumulative unless the Court otherwise orders.

Consideration

1. I found it difficult to see where the double punishment occurred.  There was no doubt that the loss of the entitlement to have the suspension period following service of the immediate suspension notice taken into account on conviction for a breach of the notice was a penalty.  See, for example, Mitchell v The Queen [2009] NSWCCA 95 at [10] per McClellan CJ at CL.

1. The real question is not one of double punishment but the length or amount of the punishment. There is no doubt that, if the Court considers that cumulative disqualification is unjust, it can moderate it under s 69 of the General Act.

1. It is true that under s 32 of the Driver Licensing Act there is a mandatory licence disqualification, where there is no mandatory or any disqualification under s 61C of the General Act, though under s 64 of the General Act there can be a discretionary licence disqualification for a conviction under s 61C of the General Act, as well, indeed, as an additional or lengthier disqualification for an offence under s 32 of the Driver Licensing Act.

1. It is, as the respondent, represented by Mr T Jackson, submitted, necessary to identify the acts which are being punished twice. None were precisely identified by Mr Kukulies-Smith. It was, instead, the length of the disqualification or suspension that differed. Thus, a disqualification following conviction under s 32 would require the offender not to drive for the immediate suspension period (maximum three months) plus the disqualification on conviction (minimum 12 months). A conviction under s 61C would only require the maximum of the immediate suspension period (three months), but could include a discretionary disqualification under s 64. There did not seem to me to be double punishment, just longer punishment.

The issue of implied repeal

1. Mr Kukulies-Smith did submit:

In light of this and where there is a discrete offence specifically created for the alleged conduct in this matter, it is plainly inappropriate and contrary to the legislature’s intention for the prosecution to prefer a more serious charge under section 32. The maintenance of the current charge is oppressive and an abuse of process as the Appellant in being convicted of the charge has been doubly punished for the one act of driving.

1. I then suggested to counsel that this seemed to be an argument suggesting that the enactment of s 61C had impliedly repealed s 32(2) pro tanto to prevent a prosecution for driving contrary to an immediate suspension notice being prosecuted under the latter provision.

1. Mr Kukulies-Smith adopted that suggestion and submitted that it supported the outcome of the appeal for which he contended.

1. Mr Jackson sought time within which to make submissions on this issue.  I directed that any further submissions on which the respondent wished to rely be filed and served on or before 2 October 2012 and that the appellant file and serve any submissions in reply on or before 9 October 2012.

1. No further submissions were received within that time.  Much later, some submissions were filed, but no leave was sought to do so nor was any extension of time sought to that end.  I have, accordingly, had no regard to those submissions.

1. In Aziz v Saliba [2013] ACTSC 2, I carefully considered the question of whether, in the light of the enactment of s 61C of the General Act, a prosecution can be taken under s 32(2) of the Driver Licensing Act against a person for driving contrary to an immediate suspension notice.

1. I adopt what I there said and do not need to repeat it. I concluded in that case that s 32(2) of the Driver Licensing Act does not apply to the driving of a motor vehicle in breach of a suspension of a person’s right to drive contrary to an immediate suspension notice.  That applies also to this case.

1. As a result, the conviction should be set aside and a verdict of acquittal entered instead.

   I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

   Associate:

   Date:  14 January 2012

Counsel for the respondent:  Mr T Jackson
Solicitor for the respondent:  ACT Director of Public Prosecutions
Counsel for the appellant:  Mr M Kukulies-Smith
Solicitor for the appellant:  Kamy Saeedi Lawyers
Date of hearing:  17 September 2012
Date of judgment:  14 January 2013