Gorry v MacKenzie - [2009] WASC 326

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: GORRY -v- MACKENZIE [2009] WASC 326

CORAM: EM HEENAN J

HEARD: 2 NOVEMBER 2009

DELIVERED : 18 NOVEMBER 2009

FILE NO/S: SJA 1083 of 2009

BETWEEN: BRETT WILSON GORRY
Appellant
AND
TANIA MACKENZIE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT MIDLAND
Coram  :MAGISTRATE S M WILSON
File No  :MI 5950 of 2008

Catchwords:

Pawnbrokers and second-hand dealers - Identification of customers - Obligation to ascertain person's full name, current residential address and to verify the person's identity - Pawnbrokers and Second-Hand Dealers Act 1994 s 39 - When obligation arises - When it may be performed

Legislation:

Pawnbrokers and Second-Hand Dealers Act 1994 (WA) s 39
Interpretation Act 1994 (WA)

Result:

Appeal allowed
Convictions quashed
Fine set aside

Category: A

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr D E Leigh

Solicitors:

Appellant: Thames Legal
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Binns v Gardiner [2004] WASCA 275
De L v Director‑General Department of Community Services (NSW) [1997] HCA 14; (1997) 190 CLR 207
Deputy Commissioner of Taxation for South Australia v Ellis and Clark Ltd (1934) 52 CLR 85
Director of Public Prosecutions for Western Australia v White [2009] WASC 62
Hotel Esplanade Pty Ltd & Plowman v City of Perth [1964] WAR 51
Palgo Holdings Pty Ltd v Gowlans [2005] HCA 28; 221 CLR 249
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Adams (1935) 53 CLR 563
Vanit v The Queen (1997) 190 CLR 378
Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156
Wills v Bowley [1983] 1 AC 57

EM HEENAN J: Section 39 of the Pawnbrokers and Second‑Hand Dealers Act 1994 (WA) makes it obligatory for a pawnbroker or second‑hand dealer to ascertain the full name and current residential address of any person with whom the pawnbroker or dealer is about to contract and to verify that person's identity by means prescribed by regulations under the Act before entering into any contract with that person. Failure to comply with the provisions of the section constitutes an offence punishable by fine and/or imprisonment. The questions arising in this appeal concern when and how the pawnbroker or dealer must comply with those obligations.
On 25 June 2009 Mr B W Gorry was convicted in the Magistrates Court at Perth of three offences under s 39(b) of the Act. He was ordered to pay a global fine of $1,000 and to pay the respondent's costs fixed at $224.20. The three convictions related to three transactions in each of which he entered into a contract with a person without, so it was alleged and found, complying with the provisions of s 39(b) of the Act. Two of those contracts were with a person KAY in which contracts were entered into on 4 and 24 September 2007 and the third was with a person MRH in which the contract was entered into on 25 November 2007. Each of the transactions involved the appellant accepting the pawn of articles lodged with him by the customer and lending money to the customer on the security of the pawn.
Leave to appeal from each of the convictions was granted by McKechnie J on 21 August 2009 pursuant to s 9 of the Criminal Appeals Act 2004 (WA).
The single ground of appeal is that the learned magistrate erred in law in finding that on each and every occasion the appellant had to verify the customer's identity by reference to identification prescribed by the regulations.
The prosecution followed a somewhat unusual course. On 12 February 2009 the parties by their counsel appeared before the learned magistrate on what they have since referred to as a directions hearing. Although counsel for the prosecution indicated that he was ready to proceed with the hearing that day, there were extensive preliminary submissions apparently advanced in the hope of simplifying the eventual trial and determination of a larger number of similar charges against the appellant, all alleging similar breaches of s 39 of the Act in circumstances the details of which need not be explored. Only three of the original charges were eventually pursued to trial and it is these which resulted in the convictions now under appeal. However, a pattern had been revealed by the charges originally pending, namely that the appellant had entered into contracts of pawn with the various customers all of which were previously well‑known to him and whose names and addresses had previously been recorded by the appellant and whose identities, on one or more of those previous occasions, had also been verified in one or more of the manners prescribed by s 39(b) on such previous occasions. However, in relation to the particular contracts of pawn which were the subject of the charges, the appellant had not, immediately before entering into those contracts, verified the identity of the particular customer in a manner prescribed by s 39(b) but instead had relied on the previous identifications which he had verified in the manner prescribed on one or more of those earlier occasions.
Because of this, the learned magistrate was urged, at the directions hearing, to determine a preliminary point raised by the parties. This was: whether the Act required a pawnbroker or second‑hand dealer to carry out the processes of verification of the identification of the customer as required by s 39(b) on every occasion when the pawnbroker or dealer was about to enter into a contract with such a person or whether the obligation imposed by the section was satisfied by the performance of the obligation on a previous occasion in a manner satisfying the provisions of the Act and in circumstances where the appellant had satisfied himself on the occasion of this particular contract that the customer was the same person as the one whose identity had previously been verified.
As will be seen later, this invitation to the court to determine as a preliminary point of law an issue of the proper interpretation of the statute, was not without disadvantages. As with all invitations to determine preliminary issues, it suffered from a necessity to deal with related questions of law and fact, before all the facts had been ascertained and before the issue of interpretation could be located in its exact context. On this occasion that disadvantage does not appear to have produced any lasting problems but it has meant that some of the issues have tended to be stated and addressed too widely. As will be seen, it also means that some qualifications need to be made in the reasons for finally disposing of this appeal. Just how and why that is so will emerge later.
In any event his Honour acceded to the application to deal with the preliminary issue of law and heard extensive submissions. His Honour essentially concluded that compliance with the obligations imposed under s 39 of the Act had to take place afresh on every particular occasion when a pawnbroker or dealer was about to enter into a contract with such a person, notwithstanding that on some previous occasion, even a recent occasion, the pawnbroker or dealer had already verified the identity of that person in a manner satisfying the provisions of the section. As his Honour put it (see pages 29 ‑ 31 of the transcript of 12 February 2009):
The issue that I have been asked to make some ruling on in relation to these matters is whether on subsequent occasions after a person has in fact been both identified and verified in relation to a contract, that if on subsequent occasions if that information is contained within records of the pawnbroker or second-hand dealer that there is a need to further verify the identity of the person.
Perhaps I will just cut straight to the chase. My view is that there is a requirement for that to happen and I say that for a number of reasons. Firstly, the beginning of section 39 in its plain meaning says, "A pawnbroker or second‑hand dealer must not enter into a contract" and that would seem to me to indicate that the intention of Parliament was that each time a person enters into a contract they are required simply to - or before they enter into it the pawnbroker and the second-hand dealer has to ascertain their full name and current residential address and has to verify the person's identity by means of identification prescribed by the regulation.
Having dealt with that preliminary issue, his Honour adjourned the trial part‑heard until 25 June 2009 when evidence was taken, further submissions heard and the eventual decision in the case given. At this second hearing counsel for the appellant invited the learned magistrate to reconsider the ruling which his Honour had made on this preliminary point but his Honour declined to do so but repeated, with more detail, his reasons for reaching his decision on that question in his final reasons for decision (transcript of 25 June 2009, pages 22 ‑ 23) where his Honour said:
It is not in dispute that this matter comes to me by way of a part‑heard hearing. I previously made a ruling in respect to interpretation of the requirements of section 39 and also regulation 13 which pertains to this prosecution on the issue and that was handed down by me on 12 February 2009. It is not challenged that the accused holds photos and details of people with whom he enters into contracts with on his computer and that on their initial transaction there is a verification of the identity of that person is done and it is then held on the computer.
The issue today is whether the accused in respect to these charges having recorded the details of the people on computer is required to verify that person every time he enters into a contract with those people, and in this case of course KAY and MRH. So far as the evidence goes, I accept the evidence of KAY and MRH as being given honestly and to the best of their recollection and that they're both credible witnesses. I accept the evidence that they both did not produce any verification of their identity on the day of these three individual transactions and contract.
Rather, they were asked by staff of the accused or the accused if they still lived at the same address; that being the address that was recorded on the computer system. Despite some uncertainty by KAY as to whether she produced ID, I accept her evidence that she did in fact not or was not in fact asked to produce ID. She was certainly clear in evidence‑in‑chief that she did not and I accept that that was the case. She also gave evidence she was just simply asked her address and that is consistent with the evidence of MRH; the same method was done and that's simply people that were recorded on the computer were simply asked if they were still at that address …
As I have indicated, I simply confirm my view that the intention of the legislation is made very clear by the preamble in the Act. It is not only designed to regulate licensed pawnbrokers and second‑hand dealers but also to facilitate the recovery of stolen goods. It is that intent of the legislation that the verification by addresses by reference to something other than a verbal acknowledgement, the regulation is aimed ‑ as cumbersome as that requirement is both for the dealer and the client ‑ it is nonetheless the law and is done so with the purpose of promoting all aspects of that legislation and include not only to regulation of those that are involved in the industry but also to a degree the regulation of people that use the services of pawnbrokers and also to assist, as I have indicated previously and certainly outlined very clearly in the Act, that it is also to facilitate the return of stolen property that is transacted through pawnbrokers.
These passages account for the ground of appeal and the submissions for the appellant that the convictions were based on an error of law, namely, a conclusion that the appellant was obliged to verify the customer's identity by reference to identification prescribed by the regulations on each and every occasion when the appellant was about to enter into a contract of pawn with that person.
Counsel for the respondent, in carefully prepared and helpful written submissions, contended, in my view correctly, that the essential facts were:
(a)the appellant was a licensed second-hand dealer and pawnbroker who operated from premises known as Cash City Guildford;
(b)the appellant established a system whereby when a client first contracted with the appellant their identity would be verified pursuant to s 39(b) of the Act, and in accordance with reg 13 of the Pawnbrokers and Second‑hand Dealers Regulations 1996 (WA) ('regulations');
(c)the appellant would then take a photograph of the client and store it in the appellant's computer system along with details of how the client's identity had been verified ('in‑house verification'); and
(d)for all future transactions, the appellant would ascertain the name and address of the client and then rely on the information stored in the computer system (and particularly the photograph of the client stored on that system) as verification of the client when entering into a new contract.
Both counsel have submitted that there are no previous decisions which aid with interpretation of s 39 of the Act and few which aid with interpretation of the Act generally. They submit that this is a test case of some importance for the application and enforcement of the Act. Obviously, therefore, the starting point for dealing with the issues arising on this appeal must be the statutory obligation itself. This is found in s 39 but the meaning of that section in its context requires reference also to s 38, s 40 and s 41 of the Act. These provide:
38Persons under 18 or affected by alcohol or drugs
A pawnbroker or a second-hand dealer must not enter into a contract with a person who is ‑
(a)under 18 years of age; or
(b)apparently affected by alcohol or any drug.
Penalty for an individual: $5000 and 12 months' imprisonment.
Penalty for a body corporate: $20,000.
39Identification of persons
A pawnbroker of a second‑hand dealer must not enter into a contract with a person unless the pawnbroker or second‑hand dealer ‑
(a)has ascertained the person's full name and current residential address; and
(b)has verified the person's identity by reference to a means of identification prescribed by the regulations.
Penalty for an individual: $5000 and 12 months' imprisonment.
Penalty for a body corporate: $20,000.
40Offences in relation to false information
A person must not provide to a pawnbroker or second-hand dealer information in relation to the person's name, address or age, in written or oral form, that the person knows to be ‑
(a) false or misleading in a material particular; or
(b) likely to deceive in a material way.
Penalty for an individual: $5000 and 12 months' imprisonment.
Penalty for a body corporate: $20,000.
41Records to be made by pawnbrokers
A pawnbroker must ensure that the following details are recorded in relation to each contract as soon as the information becomes available to the pawnbroker ‑
…
(c)the form of identification used to verify the identity of the party pawning the goods and the number (if any) of the identification documents;
…
The principal point made for the appellant in this appeal, and before the learned magistrate, was that he could not be found guilty of an offence contrary to s 39(b) on the facts as established because before entering into any of the three contracts of pawn concerned he had previously verified that customer's identity by reference to a means of identification prescribed by the regulations notwithstanding that that process of verification had been performed on a different earlier occasion.

Submissions from the appellant

Basically, the case for the appellant is that the prohibition against entering into a contract of pawn with a customer contained in s 39 applies only where the pawnbroker has not ascertained the person's full name and current residential address and has not verified the person's identity by reference to a means of identification prescribed by the regulations without stipulating that that process of ascertaining the customer's name and address and verifying his or her identity be performed on every occasion when such a contract is about to be entered into. The submission is that so long as the pawnbroker has ascertained the customer's full name and current residential address and verified the customer's identity by an acceptable means of identification on an earlier occasion that constitutes compliance with the section without requiring the process to be repeated on every occasion when a contract is entered into after the processes of identification and verification have been properly performed. This, it is said, is the grammatical meaning of the section.
Alternatively, it is submitted that even if this is not clearly the grammatical meaning of the section, the statutory provision is so ambiguous that it readily accommodates such an interpretation and, consistently with the rule of interpretation applying to statutory provisions creating offences or penalties, it should be treated as having the more liberal interpretation ‑ R v Adams (1935) 53 CLR 563, 567 ‑ 568 and per Jenkins J in Director of Public Prosecutions for Western Australia v White [2009] WASC 62 [109] and that any ambiguity should be resolved in favour of the individual by adoption of a construction which advances 'liberty over doubtful penalisation' ‑ Vanit v The Queen (1997) 190 CLR 378. Counsel for the appellant also submits that for s 39(b) to carry the meaning contended for by the respondent, and adopted by the learned magistrate, it would be necessary to import into the section some additional words such as 'before each contract is entered into' or 'has verified on that occasion ‑ the person's identity …' and that such an importation should not be done: Wills v Bowley [1983] 1 AC 57.
Furthermore, the appellant submits that the evident mischief which s 39 of the Act seeks to address is the possibility that a pawnbroker or second‑hand dealer might enter into contracts with unidentified persons or with those giving a false identity, and by so doing, facilitate the disposal of stolen goods or inhibit the recovery of stolen goods or the detection of offenders. The submission is that the elimination of this mischief is not in any way hindered by the adoption of the interpretation of the section advanced by the appellant. The submission is that on the facts of these cases, the purpose of s 39 had always been met because proper identification of the customers and verification of the identification of the customers had already been achieved by the pawnbroker on occasions before each of these contracts. When the appellant or his staff asked the customer on the particular occasions for his or her address, and compared the answers with the information already recorded, and compared the appearance of the customer with the photograph then brought up on the appellant's computer screen all necessary and reasonable precautions had already taken place to avoid dealing with unknown customers or persons giving false names or addresses.
At this point it is convenient to note that it was not suggested by the prosecution in any of these three cases that the appellant had failed to ascertain the customer's full name and current residential address as required by s 39(a). This is because the appellant or a member of his staff dealing with the customer had required the customer to give his or her name and current address and had compared that with the information already stored in the computer. Section 40 of the Act acknowledges that a customer may supply his or her name and address in either written or oral form.

The submissions for the respondent

The respondent adopted a wider approach to the process of interpreting the statute, and to the materials which should be considered for the purposes of that interpretation. Counsel for the respondent accepted that, as with any question of statutory construction, it is necessary to begin with the legislative text ‑ Palgo Holdings Pty Ltd v Gowlans [2005] HCA 28; 221 CLR 249 per McHugh, Gummow, Hayne and Heydon JJ at [4] and that the particular provision should be read as part of the Act as a whole and interpreted in the light of its context ‑ Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381, [66]. Counsel submitted that where ambiguity is found in any statutory text the approach of the court should be to adopt an interpretation which advances the objects of the Act and that for this purpose it is permissible for the court to have regard to extrinsic materials in determining the meaning ‑ Interpretation Act 1984 (WA) s 18 and s 19. With regard to the submission for the appellant that where ambiguity is found in a penal statute it should be resolved in favour of an accused, the respondent submitted that that rule had been enunciated in the past but that in modern times this was viewed as 'a rule of last resort' ‑ Binns v Gardiner [2004] WASCA 275 [20] ‑ [21] per Templeman J; and Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156, 164 at [11].
Counsel for the respondent referred to the second reading speech of the Minister for Police when introducing an amendment to the Act in the Legislative Assembly on 22 September 1994 in which the Minister referred to an obligation of the pawnbroker or second‑hand dealer to maintain records of all transactions including the details of the client and the identification produced. From this it was submitted that it had evidently been the intention of Parliament to oblige pawnbrokers to obtain details of identification in relation to each and every transaction entered into by a pawnbroker. Even if that were so, and it seems to me, with respect, that there is much scope for doubt about that contention, it does not mean that the recording of details of the processes of identification deriving from a previous contract with the same customer would fail to satisfy that obligation.
Counsel for the respondent then referred to the provisions of s 39 as they existed prior to amendments made to the Act in 2006 and also to the provisions as they stood prior to an earlier amendment in 2002. Copies of the earlier statutory provisions and of certain Parliamentary debates which disclosed the legislative purposes sought by the amendments were also produced. I am satisfied that these materials demonstrate a consistent Parliamentary intention, carried into the legislation, for the creation and improvement of provisions which should prevent or curtail the possibility of stolen goods being circulated or sold via pawnbrokers or second‑hand dealers and which would also facilitate the identification and detection of persons who delivered stolen goods to a pawnbroker or second‑hand dealer. Such policy should discourage or inhibit trafficking in stolen goods and also allow the detection or tracing of persons suspected of dealing in stolen goods. Again, while I unhesitatingly accept that this is the consistent policy shown in the Act and in past approaches to the amendments of reg 13, nothing in those materials leads to any conclusion that the process of identification required by s 39(b) must be performed afresh every time when a pawnbroker or second‑hand dealer deals with a customer whose identification has already previously been established by a process required by the statute.
Equally, I accept the submissions advanced for the respondent that the effect of s 39 and of amendments made to the Act in 2006 was restrictive in nature, that they tightened up areas in the Act which had become loose over previous years and introduced a tougher licensing and certification regime.
Counsel for the respondent also submitted that the provisions of s 41(c) of the Act required that the prescribed details should be recorded in relation to each contract as soon as the information became available to the pawnbroker and that these details included the form of identification used to verify the identity of the party pawning or selling the goods and the number, if any, of the identification document. The submission was that because these needed to be recorded in relation to each contract this necessarily implied that the process of identification needed to be carried out on each such occasion. Again, with respect, I do not consider that that conclusion follows from the requirements of s 41(c) of the Act.
Again if the procedure adopted by the appellant were assiduously followed, it would be possible to comply with s 41(c) by recording the details of the instant transaction by reference to the process of identification previously undertaken and recorded in the computer database of the appellant.
Perhaps the strongest submission for the respondent is that the provisions of reg 13 give added significance and content to the requirements of s 39(b) and form part of a complementary legislative scheme which, taken together, shows that the process of identification required by s 39(b) must be carried out on each and every occasion when the pawnbroker or dealer is about to contract with a customer. To consider this submission it is necessary to set out the provisions of reg 13.

Counsel for the respondent also made reference to reg 13A dealing with Transaction Cards and that regulation provides:

Several submissions were advanced for the respondent upon the terms and effect of these regulations. First, these regulations and s 39(b) itself were contrasted with the position which obtained before the amendment of s 39(b) in 2006. Up until the time that amendment came into effect verification of the identity of a customer could occur by the pawnbroker inspecting and noting the details of a customer's passport or driver's licence if the latter bore a photograph or by other means prescribed by the regulations. Now, since the amendment, neither a passport nor a driver's licence bearing a photograph of the customer will be sufficient, by itself, to constitute the 100 points necessary for identification. The achievement of the 100 points will only be possible if, at the least, a second document is produced and one of the documents used to verify the person's identity had been issued within three months before the verification of the person's identity ‑ reg 13(3)(b).
In reliance upon those provisions the respondent's submission is that the regulations require the production of an acceptable record of identity which is less than three months old at the date when identity is being verified which, so the submission goes on, must be at the date of the contract about to be entered into. However, this latter part of the submission does no more than beg the very question which is raised by these proceedings, namely whether the verification of identity must be immediately before the instant transaction.
To support that submission the respondent also relies on the provisions of reg 13A relating to Transaction Cards which, so the submission goes, when issued will provide a sufficient form of identification for a period of 12 months from their first issue. According to this submission, only the production of a valid and current Transaction Card will be an acceptable substitute for complying with the full identification process on any particular contract. This case did not involve any use of a Transaction Card and I was informed by counsel for the appellant, and it was not contested, that at least to the present the practice of devising and using Transaction Cards has not yet been approved.
According to this last submission, the prospect that production of a Transaction Card contemplated by reg 13(1) item 1 would satisfy the need of the pawnbroker to verify the identity of the person seeking to pawn or sell goods implies that the obligation by the pawnbroker is to see such a Transaction Card or other acceptable proof of identification on every occasion when verification of identification is required, and that such verification must take place each time the customer seeks to contract with the pawnbroker or seller. Again, however, this submission entails the same assumption that verification of identity is necessary immediately before each and every contract with the pawnbroker or second‑hand dealer. To that extent, it is another example of a contention which is circular in attempting to establish a premise which it assumes, but on this occasion this aspect is less obvious because the terms of regs 13 and 13A, insofar as they are capable of implying any answer to this controversy, are to this extent ambiguous.
There is also another consideration which is pertinent to the consideration of this submission, and that is that the meaning of s 39(b) of the Act should be drawn from the Act itself and not from the regulations and that, further, if there is any material difference between the Act and the regulations which amounts to an inconsistency then the meaning of the Act must prevail and the regulations be read down so as to be consistent with the Act ‑ Interpretation Act s 44 and Pearce and Geddes 'Statutory Interpretations of Australia' (6th ed) [7.16].
Counsel for the respondent seeks to meet this potentiality by relying on authorities which suggest that regard may be had to regulations where the Act is not workable without them and the Act and regulations together comprise a single legislative scheme ‑ see Deputy Commissioner of Taxation for South Australia v Ellis and Clark Ltd (1934) 52 CLR 85, Dixon J, 89 ‑ 95. However, that case dealt with multiple pieces of legislation dealing comprehensively with the same subject matter ‑ the several sales tax Acts which involved nine separate machinery statutes and nine separate taxing Acts (see Dixon J at 89). The present instance does not involve multiple legislative enactments of the same status, namely several Acts of Parliament, but one item of parent legislation and one item of delegated legislation made pursuant to the powers contained in the same Act. Despite the breadth of the regulation making power in s 98 of the Pawnbrokers and Second-hand Dealers Act, the starting point is that subordinate legislation should not, in the absence of specific empowerment to the contrary, be in conflict with statute law whether the statute granting the power to make the legislation or some other ‑ see for example Hotel Esplanade Pty Ltd & Plowman v City of Perth [1964] WAR 51. It would require express words to convey an intention that a general power to make regulations for a stated purpose authorised the repository to repeal or amend the Parliament's own enactments ‑ De L v Director‑General Department of Community Services (NSW) [1997] HCA 14; (1997) 190 CLR 207, 212, Brennan CJ and Dawson J. Accordingly, this is not an occasion in which the provisions of reg 13 or reg 13A can be regarded as controlling the meaning of s 39(b) in the manner in which it was submitted they did.
However, this does not mean that the regulations are of no import or significance for establishing the mode of verification of identity prescribed by s 39(b) of the Act. As reg 13 now prescribes, one of the documents necessary to complete the process of identification must be less than three months old as at the date when verification is required. This is capable of suggesting that a previous verification made on documents at a time, if any, when fresh identification is required were more than three months old may no longer be an adequate form of identification. I appreciate that this question also raises, but in a different form, the controversy as to when the necessary identification must be performed but it did not arise in this case, it was not the subject of evidence nor pursued in submissions. It may, nevertheless, lurk as a problem for the future but it is unnecessary and undesirable that I attempt to pursue it further in the present case.
For these reasons, therefore, the appeal must succeed. There was no basis for suggesting, nor was it suggested, that the verifications of identification which the appellant carried out previously and the details of which were stored in his business computer were not the result of processes of identification which satisfied s 39(b). The only question was whether or not the whole process of verifying identification had to be repeated before each of the three instant contracts with the two customers was entered into. I am satisfied that s 39(b) does not require that that necessarily be done and as there was no other evidence showing a failure of an adequate process of verifying identification, no breach of the Act was established.
In the result, the appeal should be allowed, the convictions and fine be set aside and any fine which may have been paid by the appellant should be repaid to him.