Gonyley v Raiser
[2020] ACTSC 86
•15 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Gonyley v Raiser |
Citation: | [2020] ACTSC 86 |
Hearing Date(s): | 30 January 2020 |
DecisionDate: | 15 April 2020 |
Before: | Loukas-Karlsson J |
Decision: | The appeal is allowed. The findings of guilt are overturned. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – appeal against findings of guilt – drive while disqualified – refuse to provide a breath sample or undergo alcohol screening test – statutory construction – where the Magistrate erred in finding the car park was a road related area – appeal allowed – findings of guilt overturned |
Legislation Cited: | Legislation Act 2001 (ACT) Magistrates Court Act 1930 (ACT) s 208, 218, 244 Motor Traffic Act 1936 (ACT) (repealed) Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 4A, 22, 22C Road Transport (Driver Licensing) Act 1999 (ACT) s 32 Road Transport (General) Act 1999 (ACT) Magistrates Court Regulations 2009 (ACT) Road Transport (General) Declaration of Area to be Defined as Road Related Area (NI2000-44) |
Cases Cited: | 2 Elizabeth Bay Road Pty Ltd v Owners - Strata Plan No 73943 [2014] NSWCA 409; 88 NSWLR 488 A2 v R [2018] NSWCCA 174 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Aubrey v The Queen [2017] HCA 18; 260 CLR 305 Baker v Thorpe (1985) 62 ACTR 1 Beckwith v The Queen (1976) 135 CLR 569 Boxx v Peden [2017] ACTCA 39 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Commissioner for ACT Revenue v Dataflex Pty Ltd [2011] ACTCA 14; 5 ACTLR 271 Dowling v Nominal Defendant (1975) 6 ACTR 17 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 Fox v Percy [2003] HCA 22; 214 CLR 118 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 Kuzmanovski v New South Wales Lotteries Corporation [2010] FCA 876; 270 ALR 65 Lockyer v Riley (Unreported, Magistrates Court of the Australian Capital Territory, Magistrate Burns, 15 October 2008) Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190 Peverill v Crampton [2010] ACTSC 79 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Green (No 3) [2019] ACTSC 96; 344 FLR 324 R v Lavender [2005] HCA 37; 222 CLR 67 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 SAS Trustee Corporation v Miles [2018] HCA 55; 265 CLR 137 Schubert v Lee (1946) 71 CLR 589 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 TAL Life Ltd v Shuetrim [2016] NSWCA 68; 91 NSWLR 439 Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 Walto v Gilmour [2015] ACTSC 411 Winbank v Baker (1993) 112 FLR 466 |
Parties: | Nyok Gonyley (Appellant) Daniel Raiser (Respondent) |
Representation: | Counsel A McKenna (Appellant) N Deakes (Respondent) |
| Solicitors McKenna Taylor (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 61 of 2019 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Special Magistrate Warwick Date of Decision: 16 October 2019 Case Title: Raiser v Gonyley Court File Numbers: CC18/12501, CC18/12503, CC18/12820 |
LOUKAS-KARLSSON J:
Introduction
On 16 October 2019, the appellant was found guilty after a hearing before Special Magistrate Warwick (the Magistrate) of the following three offences:
(a)refuse to undergo an alcohol screening test contrary to s 22C(1)(b) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (CC18/12501);
(b)drive while disqualified contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (CC18/12503); and
(c)refuse to provide a breath sample to police contrary to s 22(d) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (CC18/12820).
The appellant has appealed these findings of guilt.
Jurisdiction
The Court’s jurisdiction to hear the matter is derived from Part 3.10 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act), in particular section 208(1)(b), in relation to the jurisdiction to hear an appeal against conviction for a summary offence.
No convictions have been recorded against the appellant in relation to these offences. Nevertheless, the Full Court of the ACT Supreme Court in Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190 at [107] held that a finding by the Magistrates Court that an offence has been proved, that is, a finding of guilt, is a “conviction” within the meaning of s 208(1)(b) of the Magistrates Court Act.
The appeal is by way of re-hearing: Baker v Thorpe (1985) 62 ACTR 1; Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149; Walto v Gilmour [2015] ACTSC 411; Fox v Percy [2003] HCA 22; 214 CLR 118; Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24. The principles in relation to this type of appeal are summarised by Refshauge J in Peverill v Crampton [2010] ACTSC 79 at [24].
Background
As set out above, the appellant was charged with three offences. The offences were alleged to have occurred at Jerilderie Court in Reid in September 2018. The prosecution’s case was that two police officers were conducting a foot patrol of Jerilderie Court when they observed a vehicle reversing out of one of the carparks in the complex. The appellant was subsequently seen exiting the driver’s side of the vehicle. Police approached the appellant and requested identification. The appellant refused to undergo a breath screening test and later refused to provide a breath sample when requested by police. It was not in issue that he was disqualified from driving at the time of the alleged offences.
The offences required the prosecution to prove that the appellant was a driver on a “road” or “road related area”.
The Appeal
The grounds of appeal are as follows:
(a)the learned Magistrate erred in finding that the Jerilderie Court car park was a road related area; and
(b)the convictions are unsafe and unsatisfactory.
Respondent’s Concessions
The respondent in this matter conceded that an error of law has been established, and that the findings of guilt should be set aside (Respondent’s Written Submissions at [6]).
The respondent conceded an error of law has been established, in that the Magistrate erred in applying the Road Transport (General) Declaration of Areas to be defined as Road Related Areas (NI2000-44) (Declaration) to the question of whether Jerilderie Court was a road related area. That concession is properly made.
The respondent did not concede that Jerilderie Court was not a road related area, but did concede that the evidence in this case was insufficient to prove beyond reasonable doubt that the area in question was a road related area within the definition under the Road Transport (General) Act 1999 (ACT) (Road Transport Act).
As a consequence of these concessions, the respondent further conceded the appeal should be allowed and the findings of guilt should be set aside in whole pursuant to s 218(1) of the Magistrates Court Act.
Consequently, the respondent noted that the court may order the informant to pay the costs of the Magistrates Court proceedings pursuant to s 244(1)(b) of the Magistrates Court Act. Such an order may be made pursuant to s 218(1)(b): Boxx v Peden [2017] ACTCA 39 at [89].
Consideration
Road Related Area
The offences require the relevant driving to have occurred on a “road” or “road related area”. The definitions of “road” and “road related area” are found in the dictionary of the Road Transport Act.
The Road Transport Act defines a road as follows:
road, for the road transport legislation or a provision of the road transport legislation (the relevant legislation)—
(a)means an area that is open to or used by the public and is developed for, or has as 1 of its main uses, the driving or riding of motor vehicles; but
(b)does not include an area that would otherwise be a road so far as a declaration under section 12 (Power to include or exclude areas in road transport legislation) declares that the relevant legislation does not apply to the area.
The Road Transport Act defines a road related area as follows:
road related area, for the road transport legislation or a provision of the road transport legislation (the relevant legislation)—
(a)Means—
(i)an area that divides a road; or
(ii)a footpath or nature strip adjacent to a road; or
(iii)an area that is open to the public and is designed for use by cyclists or animals; or
(iv)an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles; or
(v)a shoulder of a road; or
(vi)any other area that is open to or used by the public so far as a declaration under section 12 (Power to include or exclude areas in a road transport legislation) declares that the relevant legislation applies to the area; but
(b)does not include an area that would otherwise be a road related area so far as a declaration under that section declares that the relevant legislation does not apply to the area.
(Emphasis added.)
The February 2000 Declaration
In the proceedings before the Magistrates Court, the Magistrate found that Jerilderie Court was a road related area having regard to the Declaration dated 25 February 2000.
The Declaration is as follows:
Under section 12(1)(a) of the Road Transport (General) Act 1999 (the Act) I declare that the road transport legislation applies to the following areas that are open to or used by the public:
(a)a wharf, pier or jetty;
(b)the lake foreshores (within the meaning of the Lakes Act 1976) of any lake;
(c)any part of a park, reserve, recreational or sporting ground, racecourse, or any other open place, to which the public has access whether with or without payment for admission.
(Emphasis added.)
The Magistrate made a finding that Jerilderie Court fell within (c) of the declaration: “any other open place, to which the public has access” (Transcript of Magistrates Court proceedings 92.45-47).
The Issues
This case raises two issues. The first is the question of the interpretation of the Declaration. The second is the definition of a road related area, and the question of public access.
In dealing with the question of the interpretation of the Declaration, it is appropriate to set out relevant principles of statutory construction.
Statutory Construction
In R v Green (No 3) [2019] ACTSC 96; 344 FLR 324 at [9]-[18], I summarised relevant principles of statutory construction as follows:
9. It is uncontroversial that a question of statutory construction must be “determined by reference to text, context and purpose” of the Act in question (Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 at [10]). Nevertheless, in approaching the task of construing s 28(2)(a), it is appropriate to elaborate on this process by reference to a number of further principles.
10. First, regard must be had to the appropriate starting point for the task of construction. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27, Hayne, Heydon, Crennan and Kiefel JJ observed as follows at [47]:
This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
11. This process was considered more recently in SZTAL v Minister for Immigration and Border Protection; SZTGM v Same [2017] HCA 34; 347 ALR 405 (SZTAL) by Kiefel CJ, Nettle and Gordon JJ at [14]:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
12. Thus, while it is appropriate in the first instance to consider the natural and ordinary meaning of words of the statute, at this initial stage context and purpose may nevertheless ultimately displace an otherwise ordinary meaning. As was observed by Kiefel CJ, Bell and Nettle JJ in SAS Trustee Corporation v Miles [2018] HCA 55; 361 ALR 206 (SAS Trustee) at [20]:
Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies.
13. Second, when considering the text of the Act, it must be read with regard to, and consistently with, the provisions of the Act as a whole (Legislation Act 2001 (ACT) (Legislation Act) s 140; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]).
14. Third, when construing a particular word, a court may take judicial notice of the fact of an ‘ordinary meaning’ of a word, and can do so with the assistance of an authoritative dictionary (Kuzmanovski v NSW Lotteries Corporation [2010] FCA 876; 270 ALR 65 at [37] - [38]). In Australia, the “most authoritative” dictionary is said to be the Macquarie Dictionary (see House of Pearce Pty Ltd v Bankstown City Council [2000] NSWSCA 44; 48 NSWLR 498 at [33]). I note, however, the concerns expressed by Leeming JA regarding the reliance on dictionaries in discerning meaning within a particular context (see 2 Elizabeth Bay Road Pty Ltd v The Owners Strata Plan No 73943 [2014] NSWCA 409; 88 NSWLR 488 at [81]). The use of a dictionary is considered no substitute for the interpretative process (TAL Life Ltd v Shuetrim [2016] NSWCA 68; 91 NSWLR 439 at [80]).
15. Fourth, consistent with the approach described in SZTAL, context and purpose should not be considered at some later stage, including legislative history and extrinsic materials (Federal Commissioner of Taxation v Consolidated Media Holdings Limited [2012] HCA 55; 250 CLR 503 at [39]). Some uncertainty exists as to the requirement for the statutory text to present an ambiguity before referral can be made to extrinsic materials (see CIC Insurance Ltd v Bankstown Football Club ltd [1997] HCA 2; 187 CLR 384 at 408; A2 v R [2018] NSWCCA 174 at [477]; cf Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [33]). However, there is authority in this jurisdiction at least that such an ambiguity is not required (Commissioner for ACT Revenue v Dataflex Pty Ltd and ACAT [2011] ACTCA 14; 5 ACTLR 271).
16. In any event, the Legislation Act, though not an exhaustive codification of the law of interpretation in this jurisdiction (s 137(2)), provides that extrinsic materials may be referred to for the purposes of, amongst others, resolving an ambiguous or obscure provision of an Act or confirming or displacing the apparent meaning of an Act (ss 138, 141). The categories of materials that a court may have regard to are listed non-exhaustively in s 142 of the Legislation Act.
17. Fifth, in this jurisdiction, where multiple possible interpretations of an Act are open, the interpretation which “best achieves” the purpose of the Act is to be preferred to any other interpretation (Legislation Act, s 139).
18. Finally an additional presumption is applicable in the context of penal statutes in particular. That is, although ordinary rules of construction are to be applied, where doubt exists in the construction of penal statute, courts should interpret the statue so as not to extend a category of criminal offences (Beckwith v R (1976) 135 CLR 569 (Beckwith) at [9]). However, this presumption is one to be applied as a “last resort” (Beckwith at [9]; Aubrey v The Queen [2017] HCA 18; 260 CLR 305 at [39]) or when “an ambiguity seems intractable” (R v Lavender [2005] HCA 37; 222 CLR 67 at [94]).
The principles of statutory construction in my view dictate that the words
“to which the public has access” in the Declaration at (c) are to be interpreted in light of the words that precede it: “Any part of a park, reserve, recreational or sporting ground, racecourse, or any other open place.” It is important to underline that the words must be interpreted in context.
It is necessary at this juncture to resort to Latin, specifically, ejusdem generis, meaning “of the same kind”. It is a rule used in statutory interpretation that presumes that a general term following a list of specific terms will be limited to the more specific terms. The general term will be defined to be “of the same kind” as the more specific preceding terms.
In other words, the general words “to which the public has access” that follow specific words must be construed as referring only to the types of things identified by the specific words that precede it: “Any part of a park, reserve, recreational or sporting ground, racecourse or other open place.” In this case, that would not include a residential townhouse complex. That deals with the first issue, that is, the question of the interpretation of the Declaration. The second issue concerns the question of public access more generally and the definition of a road related area.
Meaning of an ‘open place to which the public has access’
In considering the question of public access more generally, the decision of Magistrate Burns (as his Honour then was) in Lockyer v Riley (Unreported, Magistrates Court of the ACT, 15 October 2008) (Lockyer) is of relevance. In that case, the question arose whether an access driveway within a townhouse complex in Calwell was a “public place”. His Honour referred at [5] to the then applicable definition of “public place” in the Road Transport (Alcohol and Drugs) Act 1977 (ACT):
4A Meaning of public place
(1)For this Act–
public place means:
a)an off-street parking area; or
b)an area for the parking of motor vehicles on, or in the vicinity of, licensed premises; or
c)an area for the parking of motor vehicles by people attending a drive-in or other open-air theatre or cinema; or
d)a loading area; or
e)a wharf, pier or jetty; or
f)the foreshores of a lake; or
g)a park, reserve, recreational or sporting ground, racecourse or other open place, that is used by the public or to which the public has access, whether with or without payment for admission; or
h)the entrances to and the exits from, and the passages and driveways in, an area of place mentioned in paragraphs (a) to (g).
(Emphasis added.)
This definition contains the same phrase as the Declaration: “to which the public has access”. In Lockyer, at [13], the following was stated:
In my view, when the Act refers to “the public” in the definition of “off-street parking area” it refers to the public in that sense, as the public generally and not simply some special class of the public such as the holders of units in the unit plan or their invitees.
In Lockyer, at [18], reference was made to Dowling v Nominal Defendant (1975) 6 ACTR 17, where Connor J stated:
I think that when the legislature speaks of ‘any other open place to which the public has access…’ it refers to a place which has three characteristics; first that it is a place ‘other than a park, reserve etc’; secondly, that it is ‘open’ in the dictionary sense to which I have referred, that is to say it allows of access; and thirdly, that the public do in fact enjoy access to it.
In Lockyer, at [20]-[22], the charge was dismissed as the prosecution had failed to prove that the general public enjoyed access to the driveway within the townhouse complex.
The appellant further referred to the decision of Higgins J in Winbank v Baker (1993) 112 FLR 466 (Winbank), in which it was determined that a carpark within a solely residential complex was not a public place. Winbank relied upon a similarly worded definition of a “public place” under s 4(1) of the Motor Traffic Act 1936 (ACT) (repealed) that also included the words “or any other open place to which the public has access”.
Road related area: ‘open to or used by the public’
The appellant submitted that “open to or used by the public” as set out in the Road Transport Act is “interchangeable” with “open place to which the public has access” (Transcript of Supreme Court proceedings 7.6-11). In this respect, the appellant relied upon the decision of Latham CJ, Rich and Dixon JJ in Schubert v Lee (1946) 71 CLR 589 at 592:
The words “open to or used by the public” are apt to describe a factual condition consisting in any real use of the place by the public as the public—as distinct from use by licence of a particular person or only casual or occasional use.
It is clear that, for the purposes of the definition of a road related area and “open to or used by the public”, such a public place is a place where access is available to the public generally and not some special class of the public such as unit holders and invitees. It is a question of fact to be determined in each case.
The respondent agreed with the appellant’s submissions on this point (Transcript of Supreme Court proceedings 8.3-4). I accept the submission of the appellant and the respondent which are broadly in agreement and accord with my view of the law in this area and the facts in this case.
There is no difference of any substance, as a matter of statutory construction and taking into account the relevant authorities discussed above, between the phrase “open to or used by the public” and “to which the public has access”.
In my view, the respondent in the case before me has properly conceded, in accordance with proper statutory construction and the authorities discussed above, that the evidence before the Magistrate was insufficient to prove beyond reasonable doubt that the area in question was a road related area.
The Magistrate’s finding that Jerilderie Court was a road related area was in error on the facts in this case in that there was insufficient evidence to prove the matter beyond reasonable doubt.
Orders
The appeal is allowed and the findings of guilt in respect of all three offences are overturned.
The informant is to pay the appellant’s costs of the proceedings in the Magistrates Court in an amount agreed by the parties pursuant to s 4(1)(b) of the Magistrates Court Regulations 2009, or, in default of filing an agreement under s 5 of that Regulation within 6 weeks of the date of this order, in an amount assessed by the Registrar in accordance with the scale of costs as applied under s 4(3)(b) and (c) of the Regulations.
| I certify that the preceding [38] numbered paragraphs are a true copy of the Reasons for of her Honour Justice Loukas-Karlsson. Associate: Date: 17 April 2020 |
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