JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: GOSPER -v- VINICOMBE [2020] WASC 278
CORAM: DERRICK J
HEARD: 20 JULY 2020
DELIVERED : 30 JULY 2020
FILE NO/S: SJA 1021 of 2020
BETWEEN: ADAM LEE GOSPER
Appellant
AND
DAVID VINICOMBE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE B MAHON
File Number : AR 5996 of 2019
Catchwords:
Criminal law - Appeal against conviction - Appellant charged with speeding offence - Demerit points for speeding offence recorded against the appellant in demerit points register pursuant to s 45(1) and s 47 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) - Appellant served with a disqualification notice pursuant to s 52 and s 59 of the Road Traffic (Authorisation to Drive) Act - Appellant detected driving while subject to the period of disqualification specified in the disqualification notice - Appellant charged with driving without authority contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA) - Appellant elected pursuant to s 21(1) and s 21(3) of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) to have speeding offence heard and determined by Magistrates Court - Demerit points for speeding offence recorded against appellant removed from demerit points register pursuant to s 56(4)(c) of the Road Traffic (Authorisation to Drive) Act - Whether appellant entered a plea of guilty to the charge of driving without authority - Whether magistrate entered a judgment of conviction for the driving without authority offence - Whether magistrate erred in entering judgment of conviction for driving without authority offence when at time of entering judgment demerit points which resulted in appellant being served with disqualification notice had been removed from the register - Construction of s 56(4) of the Road Traffic (Authorisation to Drive) Act
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Criminal Procedure Regulations 2005 (WA)
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic (Authorisation to Drive) Act 2008 (WA)
Road Traffic (Authorisation to Drive) Regulations 2014 (WA)
Road Traffic Act 1974 (WA)
Road Traffic Code 2000 (WA)
Result:
Application for extension of time allowed
Application for leave to appeal allowed
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | Mr R M J Lombardi |
| Respondent | : | Ms G M Mullins |
Solicitors:
| Appellant | : | Robert Lombardi Lawyers |
| Respondent | : | State Solicitor (WA) |
Case(s) referred to in decision(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915; (2000) 109 FCR 33
Australian Unity Property Ltd v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333
Bright Image Dental Pty Ltd v City of Gosnells [2017] WASC 229; (2017) 225 LGERA 345
Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134
Eastough v The State of Western Australia…
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- AGLC
- Gosper v Vinicombe [2020] WASC 278
- Case
- [2020] WASC 278
- Decision Date
CaseChat Overview and Summary
The legal issues the court needed to address included the interpretation of sections 56(4) and 56(3) of the Road Traffic (Authorisation to Drive) Act 2008 (WA) and whether these sections had a retrospective effect. The court also needed to determine if the magistrate erred in entering a judgment of conviction for the driving without authority offence, given that the demerit points that led to the disqualification notice had been removed from the register. The court examined whether the removal of demerit points could invalidate the disqualification notice and, if so, whether this could be considered a defence against the charge of driving without authority.
The court concluded that section 56(4) of the Road Traffic (Authorisation to Drive) Act, when properly construed, did not have a retrospective operation. This meant that the removal of demerit points from the register did not invalidate the disqualification notice, and thus could not be used as a defence against the charge of driving without authority. The court held that the magistrate did not make an error of law by recording a judgment of conviction against the appellant. The court further distinguished the present case from Edwards v Simpson, where the conviction was set aside due to misinformation provided to the appellant. In this case, the focus was on the impact of the removal of demerit points on the appellant's liability for the driving without authority offence.
The appeal was dismissed, and the conviction for driving without authority was upheld. The court's decision clarified the prospective operation of the removal of demerit points from the register and affirmed that such removal does not invalidate a disqualification notice or provide a defence against a charge of driving without authority.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Finally, and to the extent, if any, that reg 68 can be taken into account in the construction of s 56(4),[57] to construe s 56(4) so as to give it prospective operation is consistent with the way in which reg 68 deals with the consequences of the removal of demerit points from the Register pursuant to s 56(4) (and s 56(3) also) in a case in which, before the points are removed, something is done on the basis of the recording of the points. Specifically, the consequences dealt with by reg 68 are dealt with so that they have a prospective operation only.[58][57] Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915; (2000) 109 FCR 33 [41]; O'Connell v Nixon [2007] VSCA 131; (2007) 16 VR 440 [28].[58] Regulations 68(3) and 68(4) use the phrase 'cease to have effect' which denotes that the provisions operate prospectively: Re Cullerton (No 2) [2017] HCA 4; (2017) 263 CLR 176 [28] ‑ [29]. Regulation 68(7)(a)(i) refers to the period of disqualification 'ceasing at the time of removal' of the demerit points. For the reasons I have given, it is my opinion that s 56(4) of the RTADA, properly construed, does not have a retrospective operation so as to invalidate the disqualification notice. Accordingly, the removal of the demerit points from the Register on 12 June 2019 did not provide the appellant with a defence to the driving without authority offence. It follows from my above expressed conclusion that in my opinion Magistrate Malley did not make an error of law by recording a judgment of conviction against the appellant for the driving without authority offence and that accordingly the ground of the appeal must be dismissed. In his submissions in support of the ground of appeal the appellant places reliance on the decision of the Court of Appeal in Edwards v Simpson.[59] His reliance on the decision is misplaced.[59] Edwards v Simpson. In Edwards v Simpson the appellant's conviction for an offence of driving without authority contrary to s 49(1)(a) and s 49(3)(c) of the RTA was set aside because the appellant had been induced to plead guilty to the offence as a result of being incorrectly informed by the court at an earlier hearing that as a result of being convicted of an offence of driving a vehicle with a false number plate contrary to s 97(2)(f)(iii) of the RTA he had lost his licence for a period of three months.[60] The issue for the Court of Appeal was the effect that the setting aside of the conviction for the offence of driving without authority had on a subsequent conviction recorded against the appellant in that case. Thus the case was very different to the present which, rather than being concerned with the impact of the setting aside of a conviction on the appellant's liability for the driving without authority offence, is concerned with the impact of the removal of demerit points from the Register as required by a statutory provision on the appellant's liability for the driving without authority offence.[60] Edwards v Simpson [15].