Gosper v Vinicombe - [2020] WASC 278

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
Busby v Burrow [2012] WASC 58
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Eclipse Resources Pty Ltd v Minister for Environment [No 2] [2017] WASCA 90; (2017) 223 LGERA 313
Edwards v Simpson [2018] WASCA 177; (2018) 86 MVR 141
Fazio v St John‑Ayre [2017] WASC 62
Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188
Hondema v Carroll [2008] WASC 155; (2008) 50 MVR 401
Ireland v Watson [2020] WASC 1
Kadmos v Nesina [2013] WASC 253
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
Lawson v The State of Western Australia [No 3] [2018] WASCA 129; (2018) 85 MVR 60
Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
Mohammadi v Bethune [2018] WASCA 98
O'Connell v Nixon [2007] VSCA 131; (2007) 16 VR 440
Ottobrino v Espinoza (1995) 14 WAR 373
Re Cullerton (No 2) [2017] HCA 4; (2017) 263 CLR 176
Rowe v Miller [2018] WASC 405; (2018) 87 MVR 238
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Snook v The State of Western Australia [No 2] [2015] WASCA 29
White v Wenman (1993) 17 MVR 49

DERRICK J:

Introduction

On 1 October 2019 a judgment of conviction was recorded by the Magistrates Court against the appellant for one offence of driving a motor vehicle on a road while not being a person authorised by pt 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) (RTADA) and whose authority to drive was at the time suspended contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA) (RTA) (the driving without authority offence).[1]
[1] Prosecution Notice AR 5996/2019 dated 28 May 2019.
On 10 February 2020 the appellant appeared before Magistrate Mahon and was fined $400 for the driving without authority offence, this being the minimum penalty that could be imposed.[2] The magistrate also disqualified the appellant from holding or obtaining a driver's licence for a period of nine months, this being the minimum period of disqualification that could be imposed.
[2] ts 18, 10 February 2020.
The appellant applies for an extension of time within which to appeal and for leave to appeal against the conviction recorded, and sentence imposed, for the driving without authority offence on three grounds the details of which are set out below.[3]
[3] The applications are made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
On 6 May 2020 the Principal Registrar ordered that the appellant's application for an extension of time within which to appeal and his application for leave to appeal be heard together with the appeal.
The principal, but not only, issue that the appeal gives rise to is whether the conviction for the driving without authority offence should be set aside because, on the date that the appellant engaged in the driving the subject of the offence, the appellant would have held a valid driver's licence were it not for the disqualification imposed as a consequence of a disqualification notice issued to him pursuant to the relevant sections of the RTADA in circumstances where:
1.the disqualification notice was issued as a consequence of an alleged speeding offence and the associated four demerit points being recorded against the appellant in the demerit points register (Register) in accordance with the relevant sections of the RTADA; and
2.the four demerit points were subsequently removed from the Register prior to the conviction for the driving without authority offence being recorded but after the commission of the offence.

The application for an extension of time

The last day for the appellant to appeal against his conviction was 9 March 2020.[4] The appellant filed his appeal notice on 13 March 2020, that is, four days out of time.
[4] CAA, s 10(3), s 10(4).
The appellant's counsel has sworn an affidavit dated 12 May 2020 in support of the appellant's application for an extension of time within which to appeal. In his affidavit the appellant's counsel asserts as follows:[5]
1.The appellant was not aware that he had 28 days to commence an appeal;
2.The appellant did not immediately seek legal advice in relation to the matter because he was, for the three weeks following the hearing on 10 February 2020, working night shifts as a fly‑in fly‑out worker in the Pilbara;
3.When the appellant flew back into Perth on 3 March 2020 he (the appellant) made several telephone calls to law firms that he found on the internet who told him that they did not accept instructions in relation to criminal appeals;
4.In 'early March' the appellant contacted him and outlined his case;
5.He told the appellant that he could act for him but that he (the appellant) had to file an appeal notice, that the time for filing the appeal notice had expired, that he could apply for an extension of time, that he needed to act quickly, and that he needed to show reasons; and
6.The appellant deposited some funds into his trust account on 11 March 2020 and he filed the appeal notice for the appellant on 13 March 2020.
[5] Affidavit [2] ‑ [5].
The respondent does not take issue with the accuracy of the hearsay assertions made by the appellant's counsel in his affidavit. Further, given the shortness of the delay in the filing of the appeal notice and the absence of any prejudice that will be suffered by him in the event that an extension of time is granted, the respondent does not oppose the application for an extension of time.
Ultimately the question is whether it is in the interests of justice to grant the requested extension of time. There may be cases where an extension of time is not granted even where there is merit in a ground of appeal because the delay is very lengthy, unexplained and would result in prejudice.[6]
[6] Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12] ‑ [14].
The appellant's counsel does not in his affidavit clearly explain why it was not possible for the appellant to seek legal advice by telephone while he was working night shifts as a fly‑in fly‑out worker during the three week period following 10 February 2020. Nor does the appellant's counsel in his affidavit clearly explain why, after the appellant contacted him in 'early March', the appeal notice was not filed on or before 9 March 2020 (although it is open to infer that the reason for this is that the appellant did not, for unexplained reasons, deposit funds into the appellant's counsel's trust account until 11 March 2020).
The delay in filing the appeal notice was short. The reasons for the delay are to some extent, albeit not fully, explained. The granting of the requested extension will not prejudice the respondent. The application is not opposed by the respondent. In these circumstances I am, despite the absence of certain details in the proffered explanation for the late filing of the appeal notice, persuaded that it is in the interests of justice to allow the application for an extension of time within which to appeal.

Leave to appeal

The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[7] A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[8] If leave to appeal is refused on each ground of appeal the appeal is taken to be dismissed.[9]

The sequence of events leading to the appellant's conviction and sentencing for the driving without authority offence

[7] CAA, s 9(3).

[8] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[9] CAA, s 9(3).

Before turning to the grounds of appeal it is necessary to set out in some detail the agreed sequence of events that led to a conviction being recorded against the appellant for the driving without authority offence and to the appellant being sentenced for the driving without authority offence.

The s 51 election

On 6 December 2017 the Department of Transport (the Department) sent a letter to the appellant bearing that date. In the letter the Department advised the appellant that he had exceeded the permissible number of demerit points that could be accrued within a three year period and that he was therefore liable to be served with an excessive demerit points notice. In the letter the Department set out for the appellant the details of the offences which had led to him accruing in excess of the permissible number of demerit points (13 points having been accrued by the appellant).
On 7 December 2017 an excessive demerit points notice was issued to the appellant pursuant to s 49(1) of the RTADA. The excessive demerit points notice advised the appellant of, among other things, the following:
1.Under the provisions of the RTADA a person who accrues 12 or more demerit points within a three year period is liable to a disqualification from holding or obtaining a driver's licence;
2.On 6 December 2017 he accrued 13 demerit points and was therefore liable to a disqualification from holding or obtaining a driver's licence for a period of three months;
3.Instead of serving a period of disqualification he may be eligible to elect to continue driving subject to him complying with a 12 month 'good behaviour period' undertaking;
4.His application for a 'good behaviour period' had to be given to the Chief Executive Officer of the Department (CEO) within 21 days of service of the notice;
5.During his 'good behaviour period' he would undertake not to commit an offence that resulted in two or more demerit points being recorded against him;
6.If he breached the 'good behaviour period' undertaking he would be disqualified for double the original period of disqualification stated in the notice (three months); and
7.If he elected a 'good behaviour period' undertaking and his election was approved the 'good behaviour period' would commence 28 days after the service of the notice.
On 12 January 2018 the excessive demerit points notice was personally served on the appellant in accordance with s 59(2) of the RTADA.
Also on 12 January 2018 the appellant elected pursuant to s 51 of the RTADA to undertake a 'good behaviour period' (the s 51 election). The s 51 election was approved.
The 'good behaviour period' the subject of the s 51 election was 12 months commencing on 9 February 2018 (the good behaviour period). By the s 51 election the appellant undertook that during the good behaviour period he would not commit an offence for which two or more demerit points could be recorded against him under pt 4 of the RTADA.
Further, by making the s 51 election the appellant expressed his awareness that if he breached the good behaviour period by committing an offence for which two or more demerit points could be recorded he would be liable 'for a disqualification of DOUBLE the original disqualification period that would have applied prior to him making [the] election', the period of disqualification that would have applied being three months.

The alleged speeding offence

On 1 January 2019 police, using an internal traffic vehicle speed measuring apparatus, detected the appellant driving his vehicle on Armadale Road in Forrestdale in excess of the applicable speed limit (the alleged speeding offence).[10] The police issued to the appellant an on‑the‑spot infringement notice (L3364255) pursuant to s 79 of the Road Traffic (Administration) Act 2008 (WA) for the alleged speeding offence. The infringement notice alleged that the appellant had exceeded the applicable speed limit by more than 9 km per hour but not more than 19 km per hour.[11] The infringement notice specified, in accordance with reg 17(1)(b)(i) of the Road Traffic Code 2000 (WA) (Code), that the prescribed penalty for the alleged speeding offence was a $200 fine and four demerit points. The alleged speeding offence attracted four demerit points (as opposed to two demerit points) because 1 January 2019 fell within a 'holiday period'.[12]
[10] ts 2, 10 February 2020.
[11] Exceeding the speed limit by this amount is an offence contrary to reg 11(3) of the Road Traffic Code 2000 (WA).
[12] As defined in reg 3(1) of the Code read with reg 67(5) of the Road Traffic (Authorisation to Drive) Regulations 2014 (WA).
The appellant did not pay the fine for the alleged speeding offence.
On 18 February 2019, as a result of the appellant's failure to pay the fine specified in the infringement notice, a final demand notice was issued to the appellant pursuant to s 14(1) of the Fines, Penalties and Infringements Notices Enforcement Act 1994 (WA) (Fines Act). The date specified in the final demand notice as being the due date for payment of the $200 fine and the fees specified therein was 18 March 2019.
The appellant took no action in response to the final demand notice.
On 2 April 2019 a number of things occurred.
First, the infringement notice was registered with the Fines Enforcement Registry (Registry) pursuant to s 15 and s 16 of the Fines Act.
Second, the Fines Enforcement Registrar (Registrar) issued to the appellant pursuant to s 17 of the Fines Act an order to pay or elect. By the order to pay or elect the Registrar required the appellant, by 1 May 2019, to either pay the fine for the alleged speeding offence or apply for the alleged speeding offence to be heard and determined in the Magistrates Court.
Third, the CEO caused the alleged speeding offence and the four demerit points that applied to the alleged speeding offence to be recorded against the appellant in the Register pursuant to s 45(1) and s 47 of the RTADA.

The disqualification

Also on 2 April 2019 the Department sent a letter to the appellant informing him that he had breached the s 51 election by committing the alleged speeding offence during the good behaviour period and was therefore liable to a period of disqualification double that stated in the excessive demerit points notice. In the letter the Department requested the appellant to attend his nearest Department Transport Driver and Vehicle Services Centre for personal service of a disqualification notice.
On 10 April 2019 the appellant was served with the disqualification notice (number 767097) in accordance with s 52 and s 59 of the RTADA (the disqualification notice). The appellant signed the disqualification notice. The disqualification notice advised the appellant that as a result of committing the alleged speeding offence during the good behaviour period he was now liable to a disqualification period of six months and that the period of disqualification would commence from the day after the notice had been served on him (that is, from 11 April 2019 to 11 October 2019).[13] The appellant's good behaviour period terminated on 10 April 2019 when he was served with the disqualification notice.[14]
[13] RTADA, s 52(4), s 52(5A)(a), s 52(5).
[14] RTADA, s 52(7)(b).
On the appellant being served with the disqualification notice the demerit points that had been recorded against the appellant in the Register for the offence specified in the notice (that is, the alleged speeding offence) were cancelled.[15]

The driving without authority offence

[15] RTADA, s 52(7)(a).

On 25 May 2019 the appellant drove a motor vehicle on Ranford Road in Forrestdale.
On 28 May 2019 the appellant was, as a result of the driving described in the previous paragraph, charged with the driving without authority offence.

Election in respect of the alleged speeding offence

On 28 May 2019 the appellant signed, pursuant to s 21(1) and s 21(3) of the Fines Act, an application for a court hearing by which he elected to have the alleged speeding offence heard and determined by the Magistrates Court (the election).
On 31 May 2019 the election was received and granted by the Registry.
On 31 May 2019 the Registrar, in response to the election and as required by s 21(4) of the Fines Act, commenced a prosecution in respect of the alleged speeding offence by lodging with the Magistrates Court a prosecution notice. By the prosecution notice it was alleged that on 1 January 2019 on Armadale Road, Forrestdale the appellant had exceeded the speed limit by between 10 km per hour and 19 km per hour in a 60 km zone contrary to reg 11(3) of the Code.[16]
[16] AR 6186/2019.
On 12 June 2019 as a consequence of the election:
1.the four demerit points that applied to the alleged speeding offence were removed from the Register pursuant to s 56(4)(c) of the RTADA; and
2.the disqualification notice was 'cancelled' in the Department's systems.

The Magistrates Court proceedings

On 1 October 2019 the appellant appeared in person before Magistrate Malley in relation to both the alleged speeding offence and the driving without authority offence. The appellant had appeared in relation to the alleged speeding offence and the driving without authority offence on one prior occasion on 3 September 2019.

On the appellant's matter being called the following exchange occurred between the magistrate and the appellant:[17]
HIS HONOUR: Mr Gosper, driving under suspension and doing 10 to 19 over the speed limit. Yes. What have we got? Pleas to those ones?
APPELLANT: Sorry, your Honour?
HIS HONOUR: How do you plead to those charges?
APPELLANT: Speeding, not guilty.
HIS HONOUR: Okay.
[17] ts 2, 1 October 2019.
At this point in the proceedings there was some brief discussion between the magistrate and the appellant about the prosecution's disclosure obligations in relation to the alleged speeding offence and the appellant's reasons for pleading not guilty to the alleged speeding offence.[18] After this brief discussion the magistrate asked the appellant, 'Okay. So driving under suspension, what's that?' this being an obvious reference by the magistrate to the driving without authority offence.[19] To this question the appellant responded, 'Guilty'.[20] The magistrate then stated that he would deal with the driving without authority offence 'today'.[21] At this point the following exchange occurred between the magistrate and the appellant:[22]
[18] ts 2 ‑ 3, 1 October 2019.
[19] ts 3, 1 October 2019.
[20] ts 3, 1 October 2019.
[21] ts 3, 1 October 2019.
[22] ts 3 ‑ 4, 1 October 2019.
APPELLANT: Can I be - can I ask the court to give me as much time as possible to go trial given, obviously - - -
HIS HONOUR: Well, it won't be for some considerable time, Mr Gosper. There's no problem with that.
APPELLANT: And does the guilty of the other suspension go after the speeding fine? Obviously, that was - - -
HIS HONOUR: No. I will deal with that today so it gets - starts going. There are - you know, speeding is just a fine.
APPELLANT: No. But I was on good behaviour. So, therefore, if I hadn't have got that speeding fine, which I tried to - you know, I asked the prosecution to lower it from, you know, the 10 - plus to 9. They wouldn't budge on that. So I was on good behaviour. Therefore, that's why I lost my licence and I was - drove - - -
HIS HONOUR: I see. Sorry.
APPELLANT: So this is - so if - - -
HIS HONOUR: I understand that. Yes.
APPELLANT: Yes. So does the driving - - -
HIS HONOUR: That's - - -
APPELLANT: I'm under suspension, can that come after the - - -
HIS HONOUR: Perfectly logical. So I will just adjourn it.
APPELLANT: Will that be in the New Year, your honour?
HIS HONOUR: It will be in the New Year? So 10 February.
APPELLANT: Yes.
SAXTON MS: That's fine for prosecution, your honour.
HIS HONOUR: Trial hearing. Yes. Okay. So 10 February, that's a trial. And we will see what we see on the other one. You know, obviously, the outcome of that may affect the trial hearing.
APPELLANT: Thank you, your honour.
HIS HONOUR: Okay.
Thus the magistrate did not state that he was entering a judgment of conviction against the appellant for the driving without authority offence. Nor did the magistrate proceed to deal with the appellant for the driving without authority offence. Nonetheless, the prosecution notice for the driving without authority offence records that the magistrate did on 1 October 2019 enter a judgment of conviction for the offence.[23]
[23] Criminal Procedure Act 2004 (WA), s 147(1).
On 10 February 2020 the appellant appeared in person before Magistrate Mahon in relation to both the alleged speeding offence and the driving without authority offence. At the commencement of the hearing the following exchange occurred between the magistrate and the appellant:[24]
HIS HONOUR: … Now, you've got one matter listed for trial. Let's see what's going on. You've pleaded guilty to a driving matter. The only issue listed for trial, I think, today is a speed: 10 to 19. Is that as you believe it to be?
APPELLANT: Yes, correct.
[24] ts 2, 10 February 2020.
At this point in the proceedings the prosecutor informed the magistrate that the prosecution was ready to proceed to trial on the alleged speeding offence.[25] A short time later the following exchange occurred between the magistrate and the appellant:[26]
[25] ts 2, 10 February 2020.
[26] ts 5 ‑ 6, 10 February 2020.
HIS HONOUR: … So just to look at this, the original - the drive suspended matter: you pleaded guilty to that one.
APPELLANT: Yes, yes.
HIS HONOUR: No problem with that.
APPELLANT: No. I - I obviously deny I was suspended, I admit. I was driving the car. I can't deny it. I drove suspended. I have - I've had three licences within 20 years … I've never driven unlicensed in my life.
HIS HONOUR: Yes.
APPELLANT: I've only ever had minor speeding fines. So ‑‑‑
HIS HONOUR: Okay.
…
APPELLANT: It was a mistake that night.
HIS HONOUR: You know that particular charge carries a minimum period of disqualification? You know that?
APPELLANT: I don't know that, and I would have asked the court to show leniency as it is a first offence and I've never done it before and - in a way of a fine.
Much of the remainder of the hearing was taken up by some lengthy discussion between the magistrate, the appellant and the prosecutor in relation to the possibility of the alleged speeding offence being amended so as to allege that the appellant had exceeded the speed limit by between 0 km per hour and 9 km per hour.[27] It is not necessary for me to recite the discussion herein. Rather, it suffices to say that during the discussion the appellant stated that he would plead guilty to a charge alleging that he had exceeded the speed limit by between 0 km per hour and 9 km per hour because on conviction for that offence he would not be subject to the demerit point penalty that would flow from a conviction for the alleged speeding offence, and that ultimately the magistrate, with the agreement of the prosecution, amended the prosecution notice containing the alleged speeding offence so that it alleged that the appellant had exceeded the applicable speed limit by 'between 0 and 9 km per hour - namely 69 km per hour in a 60 km zone'.[28]
[27] ts 3 ‑ 15, 10 February 2020.
[28] ts 16 ‑ 17, 10 February 2020.
Once the alleged speeding offence had been amended by the magistrate the appellant was asked to plead to the charge in its amended form. The appellant pleaded guilty to, and was convicted of, the alleged speeding offence as amended (the speeding offence).[29] The magistrate then proceeded to sentence the appellant for both the driving without authority offence and the speeding offence. The magistrate did not ask the appellant to plead to the driving without authority offence because the appellant was already recorded as having pleaded guilty to, and having been convicted of, the offence and, as is apparent from the above quoted exchanges between the magistrate and the appellant, had earlier in the hearing confirmed to the magistrate that he had pleaded guilty to the driving without authority offence.
[29] ts 17, 10 February 2020.
For the driving without authority offence the magistrate imposed the mandatory minimum penalty, namely a fine of $400.[30] His Honour also imposed the mandatory minimum period of disqualification from holding or obtaining a driver's licence, namely nine months (the disqualification order).[31] For the speeding offence the magistrate imposed the mandatory minimum fine of $100.[32] The speeding offence did not carry with it the loss of any demerit points.
[30] RTA, s 49(1)(c)(i).
[31] RTA, s 49(1)
[32] Code, reg 17(1).

Grounds of appeal

The grounds of appeal as pleaded are as follows:
1.The conviction and sentence imposed by the magistrate was an error of law (ground 1);
2.Alternatively, the conviction and sentence imposed by the magistrate was a miscarriage of justice (ground 2); and
3.Alternatively, if there was a conviction for unauthorised driving by Magistrate Malley on 1 October 2019 that conviction was an error of law (ground 3).
Ground 3 was added with leave and with the consent of the respondent at the hearing of the appeal. It was added because it is common ground between the parties that grounds 1 and 2 are premised on the appellant's conviction for the driving without authority offence having been entered on 10 February 2020 by Magistrate Mahon.
The grounds of appeal are not well formulated. They do not clearly articulate the basis for alleging that the relevant magistrate made an error of law in convicting the appellant, or the basis for alleging that Magistrate Mahon made an error of law in sentencing the appellant, or the basis for alleging that the conviction and sentence imposed constituted a miscarriage of justice. Nonetheless, it can be discerned from the discursive particulars of grounds 1 and 2 filed by the appellant on 14 May 2020 in response to an order made by the Principal Registrar on 6 May 2020 (the particulars) and the appellant's submissions on the appeal, that the essence of the appellant's contentions advanced in support of his appeal against conviction are as follows:
1.He was not convicted of the driving without authority offence on 1 October 2019 (ground 3);
2.Further and in the alternative, if he was convicted of the driving without authority offence on 1 October 2019, Magistrate Malley made an error of law in entering the judgment of conviction because:
(1)he did not 'formally enter a plea of guilty' to the offence; and
(2)even if he did enter a plea of guilty, the guilty plea should not have been accepted by the magistrate because statements that he made to the magistrate after entering the plea revealed that he might not, depending on the outcome of the future trial of the alleged speeding offence, be guilty of the driving without authority offence (ground 3);[33]
3.Further and in the alternative, if he was convicted of the driving without authority offence on 10 February 2020, Magistrate Mahon made an error of law in entering the judgment of conviction because:
(1)he did not 'formally enter a plea of guilty' before Magistrate Malley to the offence;[34] and
(2)even if he did enter a plea of guilty before Magistrate Malley, the guilty plea should not have been accepted by Magistrate Mahon because statements that he (the appellant) made to Magistrate Malley after entering the plea revealed that he might not, depending on the outcome of the future trial of the alleged speeding offence, be guilty of the driving without authority offence (ground 1); and
4.By reason of the asserted errors of law the subject of grounds 1 and 3, his conviction for the driving without authority offence has resulted in a miscarriage of justice (ground 2).[35]
[33] A decision to convict the appellant of the driving without authority offence is a decision that may be appealed against pursuant to s 6(c) and s 8(2) of the CAA. The decision may be appealed on a ground alleging an error of law pursuant to s 8(1)(a)(i) of the CAA.
[34] Appellant's Outline of Submissions dated 3 June 2020 (Appellant's submissions) [11].
[35] CAA, s 8(1)(b) permits an appellant to appeal against a decision on the ground that there has been a miscarriage of justice.
As to the appellant's appeal against sentence, it needs to be noted that the disqualification order does not form part of the sentence imposed.[36] Nonetheless, the appellant does seek to challenge the imposition of the disqualification order.
[36] Lawson v The State of Western Australia [No 3] [2018] WASCA 129; (2018) 85 MVR 60 [43] ‑ [54], [63]; Edwards v Simpson [2018] WASCA 177; (2018) 86 MVR 141 [23].
Although the appellant purports to appeal against the sentence imposed on him for the driving without authority offence,[37] he does not in the particulars, and did not in his submissions on the appeal, identify any error in the sentence or, for that matter, in the making of the disqualification order. This is hardly surprising given that Magistrate Mahon imposed the mandatory minimum fine and the mandatory minimum period of disqualification. Rather, it is clear from the appellant's submissions that his appeal against sentence relates directly to his appeal against conviction in the sense that his contention is that Magistrate Mahon erred in imposing the fine and making the disqualification order because either Magistrate Malley or Magistrate Mahon erred in convicting him of the offence.
[37] The decision to impose the fine of $400 is a decision that may be appealed against pursuant to s 6(f) of the CAA. Section 8(1)(a)(iii) permits the decision to be appealed against on the ground that the fine was excessive.
In short, despite the way in which the grounds of appeal are pleaded the reality is that the appeal is an appeal against conviction only. Obviously, if the appeal against conviction is allowed, the fine imposed for the driving without authority offence and the disqualification order will be set aside in any event.[38]
[38] Fazio v St John‑Ayre [2017] WASC 62 [24].

Ground 3

It is convenient, for reasons that will become apparent, to deal with ground 3 first.
As I have already indicated, as part of this ground the appellant contends that Magistrate Malley did not actually enter a judgment of conviction against him on 1 October 2019 for the driving without authority offence. From what I could discern from the appellant's counsel's submissions, the argument underlying this contention is that in light of not only the terms of the exchange that occurred between the magistrate and the appellant after the appellant had stated that he was guilty of driving under suspension, but also the fact that the magistrate did not proceed to sentence the appellant for the driving without authority offence,[39] the only inference that can reasonably be drawn is that the magistrate did not intend to, and did not in fact, enter a judgment of conviction against the appellant for the driving without authority offence.
[39] In par 7 of the Appellant's Submissions it is asserted, without supporting evidence, that, 'In driving matters in the Magistrate's Court in 99% of cases the person is sentenced at the same time as the conviction'. In his oral submissions the appellant's counsel, on the basis of his asserted experience but without any supporting evidence, informed me that it 'would be unheard of - if a conviction was actually entered … for [the appellant] not to be sentenced there and then'.
In my view there is no basis in the material put before me for finding that Magistrate Malley did not convict the appellant of the driving without authority offence.
Section 68 of the Criminal Procedure Act 2004 (WA) (CPA) relevantly provides as follows:
If a court determines a charge, …, it must record on the prosecution notice the determination or dismissal and any order it makes as a result of the determination or dismissal.
Thus by s 68 if Magistrate Malley determined the charge alleging the driving without authority offence by entering a judgment of conviction pursuant to s 147(1) of the CPA, his Honour was required to record this determination on the prosecution notice. The prosecution notice containing the charge alleging the driving without authority offence records the 'Judgment' as 'Convicted' and the 'Judgment Date' as 1 October 2019.[40] In light of the terms of s 68, the only conclusion that can reasonably be drawn from the fact that the prosecution notice contains these entries is that Magistrate Malley did enter a judgment of conviction against the appellant for the driving without authority offence pursuant to s 147(1) of the CPA.[41]
[40] Prosecution Notice for AR 5996/2019 dated 10 February 2020.
[41] See also Criminal Procedure Regulations 2005 (WA), reg 13A.
The remaining question that the ground of appeal gives rise to is whether Magistrate Malley made an error of law in entering the judgment of conviction. In this regard, and as I have previously indicated, the appellant contends that the magistrate did make such an error because:
1.he (the appellant) did not 'formally enter a plea of guilty' to the driving without authority offence; and
2.even if he did formally enter a plea of guilty, the plea should not have been accepted by the magistrate because statements that he made to the magistrate after entering the plea revealed that he might not, depending on the outcome of the future trial of the alleged speeding offence, be guilty of the driving without authority offence.

Did the appellant formally enter a plea of guilty?

The appellant's counsel did not in his oral submissions at any point expressly state what is intended to be conveyed by the assertion that the appellant did not 'formally enter a plea of guilty' to the driving without authority offence. Nonetheless, it was apparent from counsel's submissions that the essence of the appellant's contention on this point is that he did not actually plead guilty to the driving without authority offence because the charge alleging the driving without authority offence was not read to him fully before he was asked to plead to the charge.[42]
[42] Appeal ts 6, 9, 20 July 2020.
The procedure for the taking of a plea in the Magistrates Court is set out in s 59(2) of the CPA. Section 59(2) provides:
(2)Before requiring the accused to plead to the charge, the court must -
(a)be satisfied the accused has a copy of the prosecution notice containing the charge and has had time to consider the notice and seek legal advice about it; and
(b)be satisfied the accused understands the charge and the purpose of the proceedings; and
(c)if section 35 requires the prosecutor to serve the accused with any material and the prosecutor has not done so, proceed in accordance with section 35(10).
As I have already indicated, at the outset of the hearing on 1 October 2019 Magistrate Malley asked the appellant how he pleaded to the alleged speeding offence and the 'driving under suspension', that is, the driving without authority offence. After pleading not guilty to the alleged speeding offence and after there had been some brief further discussion between the magistrate and the appellant in relation to the alleged speeding offence, the appellant, in answer to the magistrate's question, 'Okay. So driving under suspension, what's that?' said 'Guilty'.
It is the position that Magistrate Malley did not expressly refer to the requirements of s 59(2) of the CPA before asking the appellant how he pleaded to the alleged speeding offence and the driving without authority offence. However, it does not necessarily follow from the magistrate's failure to refer expressly to the requirements of the section that his Honour was not satisfied of the matters specified in the section before requiring the appellant to plead to the charges.[43] This is particularly so given the nature of the charges and that the appellant had appeared previously in relation to them. In any event, the appellant's counsel did not seek to contend during the hearing of the appeal that the appellant did not plead to the driving without authority offence because the magistrate did not expressly refer to the requirements of s 59(2) before taking the plea, or that the appellant did not plead to the driving without authority offence because the magistrate was not, or ought not to have been, satisfied of any of the matters specified in s 59(2) before taking the plea. This is unsurprising given that to have advanced such an argument would have been inconsistent with the fact that the appellant does not suggest that his not guilty plea to the alleged speeding offence was in any way invalidated by reason of a failure on the part of the magistrate to comply with s 59(2). In all these circumstances I would not conclude that the magistrate failed to comply with s 59(2) and consequently would also not conclude that any plea of guilty entered by the appellant to the driving without authority offence was not property entered, or was in some way invalidated, by reason of a failure by the magistrate to comply with the requirements of s 59(2).
[43] Ireland v Watson [2020] WASC 1 [67].

It is the position that Magistrate Malley did not read out verbatim to the appellant the terms of the charge alleging the driving without authority offence (or for that matter the terms of the alleged speeding offence charge). It would, in my view, making full allowance for the fact that the magistrate was undoubtedly presiding over a busy list, have been prudent and preferable for the magistrate to have read in full to the appellant the terms of the charge alleging the driving without authority offence before asking the appellant to plead to the charge. However, this was not something that his Honour was required by s 59(2) to do.[44] Accordingly, the fact that his Honour did not read in full the terms of the charge alleging the driving without authority offence to the appellant before asking him to plead to the charge does not, in my view, of itself provide a basis for concluding that the appellant did not plead to the charge.
[44] The absence of such a requirement is explicable when regard is had to the requirement contained in s 59(2)(a).
This is not a case in which it can be sensibly suggested that the appellant, by reason of the charge alleging the driving without authority offence not having been read in full, might not have understood precisely what he was being asked to plead to. The appellant's exchanges with the magistrate throughout the hearing reveal that he had full knowledge of the details of the charges which had been referred to by the magistrate and to which he had been asked to plead.
In the course of his oral submissions the appellant's counsel asserted that the magistrate's failure to read in full the terms of the charge alleging the driving without authority offence, and his Honour's posing of the question, 'Okay. So driving under suspension, what's that?' resulted in a lack of clarity in relation to whether the magistrate was 'just seeking an indication of whether [the appellant was] going to plead guilty or seek a remand or want to take legal advice'.[45] As I understood the position, counsel made this assertion in purported support of the contention that the magistrate's failure to read in full the charge alleging the driving without authority offence meant that the appellant did not actually plead to the charge. Counsel did not clearly articulate the connection between what the magistrate may or may not have been seeking and whether or not the appellant had actually pleaded to the charge. In any event, in my opinion counsel's assertion is without merit. At the outset of the hearing the magistrate asked the appellant how he pleaded to both the alleged speeding offence and the driving without authority offence. Accordingly, the magistrate's failure to read in full the charge alleging the driving without authority offence cannot, in my view, be said to have resulted in any uncertainty in relation to whether or not his Honour was asking the appellant to plead to the charge. This is so notwithstanding that the question that actually prompted the appellant's relevant response of 'guilty' was not framed in terms of a direct request for the appellant to plead to the driving without authority offence.
[45] Appeal ts 6, 20 July 2020.
Further, the appellant's contention that he did not actually plead guilty to the driving without authority offence because Magistrate Malley did not read in full the terms of the charge alleging the offence must be considered in light of what occurred during the hearing before Magistrate Mahon on 10 February 2020. As is apparent from the above referred to exchanges between Magistrate Mahon and the appellant during the hearing that took place on 10 February 2020, the appellant confirmed to Magistrate Mahon that he had pleaded guilty to the driving without authority offence at the earlier hearing, admitted that he had driven while suspended (albeit after initially asserting that he denied he was suspended), and stated that it was a mistake for him to have driven on the night in question. Further, after being informed by Magistrate Mahon that the driving without authority offence carried with it a mandatory period of disqualification, the appellant asked for leniency in relation to the sentence to be imposed thereby revealing an understanding on his part of the consequences of him having pleaded guilty.
In summary, in my opinion the statements made by the appellant during the two hearings clearly demonstrate that he did, during the hearing on 1 October 2019, expressly and intentionally plead guilty to the driving without authority offence. It follows, in my opinion, that there is no merit in the appellant's contention that he did not actually plead guilty to the driving without authority offence.
I note to avoid any doubt on the issue, that nothing I have said in relation to Magistrate Malley not reading in full the terms of the charges to the appellant should be taken as indicating that a failure to adopt such a course can never result in a miscarriage of justice justifying the setting aside of a plea of guilty. For example, there may be cases in which such a failure will, either by itself or in combination with other circumstances, justify the conclusion that the accused did not understand the charge to which they were asked to plead and therefore did not intend to admit guilt with the result that to allow the plea to stand would constitute a miscarriage of justice.[46] However, for the reasons I have given this is not, in my view, such a case. Nonetheless, I repeat what I have said above, that is, that in my view the practice of not reading in full the terms of the charge to an accused before asking the accused to plead is not one that should be adopted.[47]

Did the magistrate make an error of law in accepting the plea of guilty and entering the judgment of conviction?

[46] Lawson v The State of Western Australia [No 2] [2018] WASCA 204 [17] ‑ [19].

[47] See in this regard the comments made by EM Heenan J in Busby v Burrow [2012] WASC 58 [71] ‑ [72] as to the importance of observing the formalities of reading a charge to an accused.

The question that remains is whether Magistrate Malley made an error of law in accepting the appellant's plea of guilty and entering a judgment of conviction on the basis of the plea.

The effect of the statements made by the appellant

I have referred above to the exchange that occurred between Magistrate Malley and the appellant after the appellant had pleaded guilty to the driving without authority offence. It is, I think, fair to say that the statements made by the appellant are open to more than one interpretation. It might be said that the appellant was asking the magistrate not to sentence him in relation to the driving without authority offence until he had been dealt with for the alleged speeding offence (possibly on the basis that the penalty imposed in respect of the driving without authority offence would be less if he was acquitted of the alleged speeding offence). Alternatively, it might be said that the appellant was, despite his plea of guilty, asking the magistrate not to actually convict him of the driving without authority offence until he had been dealt with for the alleged speeding offence on the basis that if he was acquitted of the alleged speeding offence his liability for the driving without authority offence would fall away and his plea of guilty would not stand.
Accepting that the appellant's statements to the magistrate can be interpreted in the second of the ways outlined above, the question that arises is whether the magistrate, in light of the statements, made an error of law in proceeding to enter a judgment of conviction against the appellant for the driving without authority offence.
It is, of course, the position that an appellate court will approach an attempt to set aside a conviction based on a plea of guilty with 'caution bordering on circumspection'.[48] However, it is equally well established that where a person pleads guilty before a magistrate but then qualifies their plea by a statement which, if true, may show that they are not guilty of the charged offence, the magistrate has a duty to satisfy him or herself that the plea is a true admission of guilt and, in the absence of such satisfaction, refuse to accept the plea and direct that a plea of not guilty be entered. A failure by a magistrate to adopt such a course will constitute an error of law.[49] Accordingly, if the appellant's statements to the magistrate that his liability for the driving without authority offence would fall away if he was ultimately acquitted of the alleged speeding offence were true (accepting that the appellant's statements to the magistrate can be interpreted in this way), then the magistrate, as is accepted by the respondent, made an error of law in accepting the appellant's plea of guilty and entering the judgment of conviction.
[48] Snook v The State of Western Australia [No 2] [2015] WASCA 29 [104]; See also Lawson v The State of Western Australia [No 3] [19].
[49] Ottobrino v Espinoza (1995) 14 WAR 373, 384; Hondema v Carroll [2008] WASC 155; (2008) 50 MVR 401 [57] ‑ [62]; Kadmos v Nesina [2013] WASC 253 [15] ‑ [17]; Snook v The State of Western Australia [107]; Rowe v Miller [2018] WASC 405; (2018) 87 MVR 238 [29].
It follows, that in order to decide if Magistrate Malley did make an error of law in entering the judgment of conviction, it is necessary to consider whether the appellant's statements that his liability for the driving without authority offence would fall away if he was ultimately acquitted of the alleged speeding offence were correct. In other words, and given that the appellant was ultimately not convicted of the alleged speeding offence, it is necessary to consider, in determining if the magistrate made the alleged error, whether the fact that the appellant was not ultimately convicted of the alleged speeding offence did provide him with a defence to the driving without authority offence.

Did the appellant have a defence to the driving without authority offence?

The appellant's argument

The appellant submits that he did, as a result of not being convicted of the alleged speeding offence, have a defence to the driving without authority offence and that there was 'no legal basis' for him to have been convicted of the offence. The argument advanced by the appellant in support of this submission is relatively straight forward and may be summarised as follows:
1.On 2 April 2019 four demerit points were recorded against the appellant in the Register as a result of his failure to pay the fine for the alleged speeding offence;
2.The disqualification notice which resulted in him being disqualified from holding or obtaining a driver's licence from 11 April 2019 to 11 October 2019 was founded on the recording of the four demerit points;
3.Given that he was not ultimately convicted of the alleged speeding offence but was rather only convicted of the speeding offence, he was not subject to the accrual of four demerit points (or any demerit points) with the result that there was no basis in law for him to have been convicted of the driving without authority offence; and
4.Consequently, the magistrate made an error of law in convicting him of the driving without authority offence.

The mechanism by which the appellant's disqualification arose and the demerit points were removed from the Register

In light of the above referred to argument of the appellant it is necessary to set out the mechanism by which the appellant's disqualification arose and by which the demerit points were removed from the Register (notwithstanding that I have to a large extent already done this in stating the agreed sequence of events leading to the appellant's conviction for the driving without authority offence). The mechanism can be summarised as follows.
1.Once the infringement notice was registered with the Registry the Registrar was required to issue an order to pay or elect to the appellant;[50]
2.The effect of the making of the order to pay or elect was that for the purposes of pt 4 of the RTADA the alleged speeding offence was 'treated as having been dealt with by infringement notice';[51]
3.Sections 45(1) and 47 of the RTADA required that demerit point action be taken by the CEO recording four demerit points against the appellant in the Register;
4.Once the CEO recorded in the Register a total of two or more demerit points for an offence committed by the appellant during the good behaviour period, the CEO was required by s 52(1) of the RTADA to give to the appellant, in accordance with s 59 of the RTADA, the disqualification notice;
5.On being given the disqualification notice the appellant was disqualified from holding or obtaining a driver's licence for the period from 11 April 2019 to 11 October 2019;[52]
6.As a consequence of the election and the commencement of the prosecution in respect of the alleged speeding offence, the CEO was required by s 56(4)(c) of the RTADA (which is within pt 4 of the RTADA) to cause the four demerit points (being demerit points recorded because the alleged speeding offence was to be treated as having been dealt with by infringement notice) to be removed from the Register; and
7.On 12 June 2019 the four demerit points were removed from the Register as required by s 56(4)(c) of the RTADA.
[50] Fines Act, s 17.
[51] Fines Act, s 3(1) (definition of 'road law'), s 26(2)(b); Road Traffic (Administration) Act 2008 (WA), s 4 (definition of 'road law'); RTADA, s 40(1) (par (b) of the definition of 'dealt with: infringement notice').
[52] RTADA, s 52(5).
In light of the above stated mechanism by which the appellant's disqualification arose and by which the four demerit points were removed from the Register, a number of points can be made.
First, the appellant's disqualification from holding or obtaining a driver's licence arose automatically by operation of law, not as a result of an order of a court or tribunal.[53] In particular, the disqualification arose as a consequence of four demerit points being recorded against the appellant in the Register as a result of the chain of events that commenced with the alleged speeding offence and associated infringement notice.
[53] Rowe v Miller [41].
Second, the removal of the four demerit points from the Register was something that the CEO was under a statutory obligation to cause to occur. The removal of the four demerit points from the Register did not involve the exercise of any discretion on the part of the CEO.
Third, the appellant's conviction for the speeding offence on 10 February 2020 did not change the status of the Register because the four demerit points had already been removed from the Register on 12 June 2019.
It follows, that the question whether the appellant did have a defence to the driving without authority offence at the time that he pleaded guilty to, and was convicted of, the offence turns not on the effect of the appellant being convicted of the speeding offence as opposed to the alleged speeding offence, but rather on the impact, if any, of the removal of the four demerit points from the Register on 12 June 2019. This in turn requires further consideration to be given to the statutory provision pursuant to which the four demerit points were removed and also to any associated regulations.

Section 56 of the RTADA and associated regulations

Section 56 of the RTADA, so far as is presently relevant, provides as follows:
(1)The CEO is required to maintain a demerit points register in accordance with this Act.
(2)The demerit points register is to contain details of -
(a)each person against whom demerit points are recorded under this Act; and
(b)each offence for which demerit points are recorded against that person and the day on which the offence was committed or allegedly committed including, in the case of a person who is a novice driver (type 1) or a novice driver (type 2), whether or not the demerit points are post commencement demerit points; and
(c)the number of demerit points recorded against the person for the offence; and
(d)the day on which an excessive demerit points notice was given, and the number of demerit points and period of disqualification stated in it; and
(e)the day on which an excessive demerit points (novice driver) notice was given, and the number of demerit points and period of disqualification stated in it; and
(f)the day on which a section 51 election, if any, was received; and
(g)the day on which a notice, if any, disqualifying a person from holding or obtaining a driver's licence was given under section 52, and the period of disqualification stated in it; and
(h)the day on which demerit points -
(i)expire through the passing of time; or
(ii)are cancelled,
and the number of points that expire or are cancelled; and
(i)anything else prescribed in the regulations.
(3)If a conviction is quashed, the CEO is to cause any demerit points recorded because of the conviction to be removed from the demerit points register, and they are to be taken to have never been recorded.
(4)If, after an alleged offence has been dealt with by infringement notice the CEO is satisfied that -
(a)the infringement notice has been withdrawn; or
(b)proceedings under the Fines, Penalties and Infringement Notices Enforcement Act 1994 Part 3 in respect of the infringement notice have been withdrawn; or
(c)the matter has come before a court for determination,
the CEO is to cause any demerit points recorded because the alleged offence has been dealt with by infringement notice to be removed from the demerit points register, and they are to be taken to have never been recorded.
(5)Subsection (4) does not prevent the points removed from being again recorded if the alleged offender is convicted of the alleged offence.
(6)…
(7)Regulations may -
(a)provide for the adjustment of the demerit points register; or
(b)make any other provision necessary or convenient to be made,
to deal with consequences of subsection (3) or (4) in a case in which, before the demerit points are removed from the demerit points register, anything has been done on the basis that the demerit points were recorded.
(8)…
In the present case, and as I have already indicated, the four demerit points were removed from the Register on 12 June 2019 pursuant to s 56(4)(c) of the RTADA because the alleged speeding offence was taken to have been dealt with by an infringement notice, and the alleged speeding offence had, by reason of the commencement of the prosecution following the election, come before a court for determination. Further, by reason of s 56(4)(c) the demerit points, once they had been removed from the Register, were 'to be taken to have never been recorded'.
Section 56(7) of the RTADA expressly provides for the making of regulations 'necessary or convenient to be made' to deal with the consequences of s 56(3) or s 56(4) in a case in which before the removal of the demerit points something has been done on the basis that the demerit points were recorded. That is, provision is made for the making of 'necessary or convenient' regulations to deal with the consequences, in a case in which before the removal of the demerit points something has been done on the basis that the demerit points were recorded, of not only the removal of the demerit points but also the fact that they 'are to be taken to have never been recorded'. In the present case the thing done on the basis that the demerit points were recorded was that the appellant was given the disqualification notice which disqualified him from holding or obtaining a driver's licence from 11 April 2019 to 11 October 2019.

The only regulation made pursuant to s 56(7) of the RTADA is reg 68 of the Road Traffic (Authorisation to Drive) Regulations 2014 (WA) (RTAD Regulations). Regulation 68, which is headed 'Some consequences of removing demerit points from [Register]' relevantly provides as follows:
(1)In this regulation ‑
removed means removed or required to be removed.
(2)This regulation applies if under section 56(3) or (4) demerit points are removed from the demerit points register.
(3)A notice under section 49(1) ceases to have effect if the giving of the notice required the cancellation of the demerit points that are subsequently removed but the notice has not resulted in -
(a)a period of disqualification commencing before the day on which the demerit points are removed; or
(b)a person making a section 51 election.
(4)If the giving of a notice under section 49(1) required the cancellation of the demerit points that are subsequently removed and, when the demerit points are removed, the notice has not resulted in a period of disqualification commencing but has resulted in a person making a section 51 election, the notice and the election each cease to have effect.
(5)In circumstances described in subregulation (3) or (4), any demerit points that were cancelled as a result of the notice, except any subsequently removed, have the effect, if any, that they would have if they had not been cancelled.
(6)Subregulation (7) applies if -
(a)the giving of a notice under section 49(1) required the cancellation of any demerit point subsequently removed; and
(b)at the time of removal ‑
(i)the notice has resulted in a period of disqualification; or
(ii)the notice has resulted in a person making a section 51 election and a period of disqualification under section 52 has resulted from a notice given under section 52(1) for an offence during the section 51 election period.
(7)In circumstances described in subregulation (6) ‑
(a)if a notice under section 49(1) would not have been given if each demerit point removed had never been recorded ‑
(i)the period of disqualification ceases at the time of removal if it has not already expired; and
(ii)any demerit points that were cancelled as a result of the notice, except any removed or under subregulation (8) credited as served, have the effect, if any, that they would have if they had not been cancelled;
and
(b)if a notice under section 49(1) would have been given even if each demerit point removed had never been recorded ‑
(i)the period of disqualification, whether or not it has already expired, is adjusted, if required, to what it would have been if the points removed had never been recorded; and
(ii)if a greater period of disqualification has already been served than the adjusted period (in which case the difference is called the excess period served), the number of current demerit points, if any, then recorded against the person must be reduced by cancelling one or more points according to subregulation (9).
(8)…
(9)…
(10)…
The references in reg 68 to the notice issued under s 49(1) (that is, an excessive demerit points notice) requiring the 'cancellation of demerit points' relates to s 49(3) of the RTADA. Section 49(3) provides:
(3)Whether or not the person makes a section 51 election, demerit points recorded against the person in the demerit points register on or before the day on which, according to the notice, the stated number of demerit points was reached are cancelled.
As is apparent from its terms, reg 68 only applies to the situation in which an excessive demerit points notice given under s 49(1) of the Act requires the cancellation of demerit points that are subsequently removed from the Register. The regulation does not deal with the situation in which the demerit points that are removed from the Register are not the demerit points that were cancelled by reason of the excessive demerits point notice. In the appellant's case, none of the demerit points that were cancelled as a consequence of the excessive demerit points notice given to the appellant under s 49(1) (these being the 13 points accrued by the appellant as at 6 December 2017) were removed from the Register. Rather, the only demerit points that were removed from the Register were the four demerit points that the appellant accrued after the cancellation of the demerit points that occurred as a consequence of the excessive demerit points notice being given to the appellant. Accordingly, reg 68 does not address the consequences of the removal from the Register on 12 June 2019 of the four demerit points that were recorded against the appellant in respect of the alleged speeding offence.
Given that reg 68 does not deal with the consequences of the removal from the Register on 12 June 2019 of the four demerit points, attention must be turned back to the wording of s 56(4). More particularly, the relevant question is whether the words in s 56(4) that demerit points removed from the Register 'are to be taken to have never been recorded' should be construed as having a retrospective operation so as to invalidate the disqualification notice and thereby provide the appellant with a defence to the driving without authority offence. To put it another way, the question is whether the words used in s 56(4) should be construed as meaning that on removal of the demerit points from the Register the points are treated not only as never having been recorded from the date of their removal, but also as never having been recorded from the time that they were in fact recorded until the time that they were removed. The result of construing s 56(4) so as to give it retrospective operation, which is the construction the appellant urges upon me, would be that the appellant, at the time that he pleaded guilty to, and was convicted of, the driving without authority offence, was not as a matter of law guilty of the offence because at the time of his driving he was not, by reason of the subsequent removal of the demerit points, disqualified from holding or obtaining a driver's licence.
The respondent contends that s 56(4), properly construed, has only a prospective operation.

The proper construction of s 56(4) of the RTADA

The principles of statutory construction are well settled. Statutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text must be construed in its context and having regard to the objectively ascertained legislative purpose.[54]
[54] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; Eclipse Resources Pty Ltd v Minister for Environment [No 2] [2017] WASCA 90; (2017) 223 LGERA 313 [120] ‑ [121]; Australian Unity Property Ltd v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 [77] ‑ [85]; Mohammadi v Bethune [2018] WASCA 98 [31] ‑ [36]; Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134 [104].
Applying the settled principles of statutory construction I am, for the following reasons, satisfied that the words in s 56(4) of the RTADA do not have retrospective operation with the result that 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.
First, s 56(4) provides that demerit points 'are to be taken to have never been recorded' (emphasis added). The Oxford English Dictionary defines the words 'to be' as meaning 'that which is to be; the future'. Accordingly, the use of the words 'to be' in the section indicates that the consequences of the removal of the demerit points from the Register are prospective rather than retrospective so that the point in time at and from which the demerit points 'are … taken to have never been recorded' is the time that they are removed from the Register.
Second, it is well established that in the absence of a clear statement to the contrary, legislation will be assumed not to have retrospective operation.[55] Section 56(4) does not contain any clear statement to the contrary. That is, the section does not contain a clear statement to the effect that the removal of the demerit points from the Register is to operate so as to retrospectively:
1.deny any legal effect, for all purposes, to demerit points that are recorded in the Register but are subsequently removed; and
2.invalidate anything done on the basis of the demerit points being recorded in the Register (for example, the issuing of a disqualification notice).
[55] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267; Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188, 194; Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1, 22; Bright Image Dental Pty Ltd v City of Gosnells [2017] WASC 229; (2017) 225 LGERA 345 [85].
Third, in the present case the appellant, on 25 May 2019, knowingly and deliberately drove in contravention of the validly issued and effective disqualification notice. His driving was therefore as at that date in breach of the law and the commission of the driving without authority was complete. If it had been the intention of the legislature for s 56(4) (as well as s 56(3)) to provide that conduct which was unlawful, and which constituted a criminal offence at the time it was carried out, should be retrospectively legitimised so that it was never unlawful, it is reasonable to expect that clear and unequivocal language would have been used.[56]
[56] Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134 [57].
Fourth, there is a readily discernible legislative purpose behind s 56(4) providing that the point in time at and from which the demerit points are taken to have never been recorded is the time that they are removed from the Register. The purpose is to ensure that once a person decides to dispute their guilt for a demerit point offence and consequently elects to have the issue of their guilt determined by a court, they are no longer subject to the consequences that would otherwise flow from having been served with a disqualification notice as a result of the recording of the demerit points. To put it another way, the purpose behind the prospective operation of s 56(4) is to ensure that any disqualification notice associated with the demerit points that are removed from the Register ceases to have effect from the time of the removal of the points.
Fifth, and following on from the previous paragraph, construing s 56(4) so as to give it prospective operation is consistent with the presumption of innocence.
Sixth, to construe s 56(4) in a way that gives it retrospective operation could lead to results that would undermine the obvious purpose behind the demerit point regime created by the RTADA, the purpose being to ensure the safety of the community, including other road users, by disqualifying persons who repeatedly contravene traffic laws from holding or obtaining a driver's licence. This point can be demonstrated by assuming the occurrence of the following sequence of events in the present case:
1.The driving without authority offence is determined prior to the alleged speeding offence;
2.The appellant is acquitted of the driving without authority offence because the removal of the four demerit points from the Register on 12 June 2019 operates retrospectively thereby invalidating the disqualification notice;
3.The alleged speeding offence is subsequently determined and the appellant is convicted, either on his plea of guilty or following a trial; and
4.As a consequence of the appellant being convicted of the alleged speeding offence the demerit points are again recorded in the Register pursuant to s 56(5) of the RTADA.
Thus, in the above outlined sequence of events the result of construing s 56(4) retrospectively is that the appellant, due solely to the order in which the driving without authority offence and alleged speeding offence are dealt with, would avoid liability for the driving without authority offence despite his subsequent conviction for the alleged speeding offence and consequential recording of the four demerit points in the Register that had been (albeit temporarily) removed from the Register as a result of his election to have the alleged speeding offence determined by a court. In other words, although on the assumed sequence of events the appellant is ultimately convicted of the offence that originally led to him being validly served with the disqualification notice, he would avoid liability for deliberately driving in contravention of the notice because of the 'retrospective removal' of the demerit points. Such a construction of s 56(4) should not, in my view and in the absence of clear and unequivocal wording supporting the same, be adopted.
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.

Decision on ground of appeal and additional points

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].
The respondent in his submissions has, quite properly, drawn my attention to the decision in White v Wenman.[61]
[61] White v Wenman (1993) 17 MVR 49.
In White v Wenman the appellant was issued with an infringement notice that resulted in his driver's licence being suspended. The appellant then drove and was charged with driving while under suspension. The appellant pleaded guilty to, and was convicted of, the offence of driving while under suspension. However, subsequently both the infringement notice that gave rise to the licence suspension and the disqualification notice were withdrawn.
The appellant appealed against the conviction for driving while under suspension. Pidgeon J, in allowing the appeal, held that the withdrawal of the infringement notice and the disqualification notice operated retrospectively so that the appellant had a defence to the driving while under suspension offence.[62]
[62] White v Wenman (52).
The respondent submits that White v Wenman is distinguishable from the appellant's case on two bases and consequently does not provide support for the appellant's contention that Magistrate Malley made an error of law in entering a judgment of conviction against him for the driving without authority offence. The two bases on which the respondent submits the case is distinguishable from the appellant's case are as follows:
1.The case was concerned with different statutory provisions under the RTA which have since been repealed and replaced with an amended road traffic legislative scheme; and
2.In the case the disqualification notice was issued as a result of a 'genuine mistake',[63] it was 'never intended that a disqualification notice should issue',[64] and the disqualification notice should not have issued.[65] Both the infringement notice and the disqualification notice were subsequently withdrawn as it was accepted that the appellant had not committed the offence the subject of the infringement notice.[66]
[63] White v Wenman (50).
[64] White v Wenman (51).
[65] White v Wenman (53).
[66] White v Wenman (51).
I accept the respondent's submissions. The statutory regime under which White v Wenman was decided was different to the statutory regime that currently applies. Further, unlike in White v Wenman the disqualification notice issued to the appellant in the present case was not issued by mistake but was appropriately issued, and neither the infringement notice issued to the appellant nor the disqualification notice issued to him were withdrawn. In these circumstances I do not consider that the decision in White v Wenman provides any support to the appellant's case on the appeal.

Ground 2

For the reasons that I have given in dismissing ground 3, I am satisfied that the appellant's conviction for the driving without authority offence has not resulted in a miscarriage of justice. The ground of appeal must be dismissed.

Ground 1

Given that I have found that the appellant's conviction for the driving without authority offence was entered by Magistrate Malley on 1 October 2019 this ground of appeal falls away and must be dismissed.

Appeal against sentence

I have previously expressed the view that the appeal is in reality an appeal against conviction only. Nonetheless, I state for the sake of completeness that to the extent that the appeal against the sentence imposed for the driving without authority offence is maintained independently of the appeal against conviction, the appeal is devoid of merit. As I have already pointed out, the magistrate imposed the mandatory minimum fine of $400 for the offence. Accordingly, the imposition of the fine reveals no express error. Nor, quite obviously, can it be said that the imposition of the fine was manifestly excessive and therefore reveals implied error.
I have previously pointed out that the disqualification order does not form part of the sentence imposed by the magistrate. In any event, given that the magistrate imposed the mandatory minimum period of disqualification, even if the appellant had brought a separate ground of appeal challenging the disqualification order, the appeal would, for the reasons I have given in relation to the appeal against the fine imposed, be devoid of merit.

Conclusion

Given the question of statutory construction that the appeal has given rise to, the respondent does not oppose leave to appeal being granted. In my view this is an appropriate concession, but only to the extent that it relates to the ground of appeal that has genuinely given rise to the question of statutory construction. Accordingly, the orders I will make are as follows:
1.The application for an extension of time within which to appeal is allowed;
2.Leave to appeal on ground 3 is granted;
3.Leave to appeal on grounds 1 and 2 is refused; and
4.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
30 JULY 2020