Gray v Police - [2022] SASC 127

Supreme Court of South Australia
(Appeal to a Single Judge)
GRAY v POLICE
[2022] SASC 127
Judgment of the Honourable Justice Blue
9 November 2022
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
MAGISTRATES - APPEAL AND REVIEW
The appellant appeals against his convictions by a Magistrate of two counts of driving unauthorised having been disqualified as a consequence of a drug driving offence in contravention of section 74(2ac) of the Motor Vehicles Act 1959 (SA).
Mr Gray appeals on the grounds that the Magistrate erred in the construction of section 74(2ac)(c). He contends that the Magistrate should have held that the requirement in paragraph (c)(ii) that the defendant had been convicted of or expiated:
1“at least 1 other drug driving offence” required a conviction or expiation of two or more drug driving offences; and
2such an offence committed or allegedly committed within five years before the commission or alleged omission of "the offence” required that the drug driving offence be committed or allegedly committed within five years before the subsection 74(2ac)(c) offence.
Held (dismissing the appeal):
1On the proper construction of section 74(2ac)(c)(ii), the requirement that the defendant had been convicted of or expiated “at least 1 other drug driving offence” only requires a conviction or expiation of one or more drug driving offences (at [49]).
2On the proper construction of section 74(2ac)(c)(ii), the requirement that the defendant had been convicted of or expiated another drug driving offence (in addition to the disqualification offence) committed or allegedly committed within 5 years before the commission or alleged omission of “the offence” requires that the drug driving offence be committed or allegedly committed within five years before the disqualification offence (at [64]).
3Appeal dismissed (at [65]).

Motor Vehicles Act 1959 (SA) s 5(1),s 74 (2ab), s 74(2ac), s 74(2ac)(b), s 74(2ac)(c), s 74(2ac)(c)(ii), s 74(c), s 75, s 77B, s 79, s 79A, s 79B, s 79B(1)(a), s 79B(1)(b), s 79B(1)(c), s 79B(2)(a), s 79B(2)(b), s 79B(2)(c); Road Traffic Act 1961 (SA) s 5(1), s 47(1), s 47(1a), s 47A, s 47B(1), s 47B(5), s 47BA(1)(a), s 47BA(6), s 47EAA(9), s 47EAA(9a), s 47I(7), s 47I(14) s 81C, s 81D, referred to.

GRAY v POLICE
[2022] SASC 127

BLUE J: The appellant Shannon Gray was convicted by a Magistrate of two counts of driving unauthorised having been disqualified as a consequence of a drug driving offence.[1]
[1] Motor Vehicles Act1959 (SA) section 74(2ac).
Mr Gray appeals against the convictions on the grounds that the Magistrate erred in the construction of section 74(2ac)(c) of the Motor Vehicles Act1959 (SA) (the Vehicles Act). He contends that the Magistrate should have held that the requirement in paragraph (c)(ii) that the defendant had been convicted of or expiated:
1 “at least 1 other drug driving offence” required a conviction or expiation of two or more drug driving offences; and
2such an offence committed or allegedly committed within five years before the commission or alleged omission of “the offence” required that the drug driving offence be committed or allegedly committed within five years before the subsection 74(2ac)(c) offence.
The appeal turns on questions of law, namely the proper construction of section 74(2ac)(c). It does not involve any questions of fact.
Background
On 12 February 2012 at 8 pm Mr Gray allegedly drove a vehicle on a road at Woodville South, when he was stopped by police and subjected to a drug and alcohol screening test. He was allegedly submitted to an oral fluid analysis which detected methylamphetamine and tetrahydrocannabinol.
On 7 March 2012 a police officer issued to Mr Gray an expiation notice (the Expiation Notice) for committing an offence on 12 February 2012 at 8 pm of driving a vehicle whilst there were present in his oral fluid prescribed drugs (the February 2012 alleged drug driving) (in contravention of section 47BA(1)(a) of the Road Traffic Act 1961 (SA) (the Traffic Act). The Expiation Notice showed an expiation fee payable totalling $575.
On or shortly after 7 March 2012 Mr Gray expiated the alleged offence by paying the expiation fee in the Expiation Notice.[2]
[2] It was an agreed fact before the Magistrate that the expiation occurred on 12 February 2012. However, the Expiation Notice was not issued until 7 March 2012 and it is agreed on appeal that the alleged offence was expiated on or shortly after that date by payment of the expiation fee.
On 7 April 2014 Mr Gray drove a vehicle on a road at Gilman whilst there were present in his oral fluid methylamphetamine. He thereby committed the offence of driving a vehicle whilst there were present in his oral fluid a prescribed drug in contravention of section 47BA(1)(a) of the Traffic Act (the April 2014 drug driving).
On 5 June 2014 a Complaint and Summons was issued by a police officer against Mr Gray for the April 2014 drug driving.
On 23 October 2014 Mr Gray pleaded guilty to and was convicted of the April 2014 drug driving. His driver’s licence was disqualified pursuant to section 47BA(4)(a)(ai) of the Traffic Act for three months commencing on that date.
Since the end of the disqualification period (22 January 2015), Mr Gray has not been authorised, under the Vehicles Act or the laws of other jurisdictions, to drive a motor vehicle.
On 19 December 2020 Mr Gray drove a motor vehicle on a road at West Lakes without being authorised under the Vehicles Act or the laws of other jurisdictions to drive a motor vehicle. This driving is the subject of count 1.
On 10 August 2021 Mr Gray drove a motor vehicle on a road at Sunlands without being authorised under the Vehicles Act or the laws of other jurisdictions to drive a motor vehicle. This driving is the subject of count 2.
On 17 August 2021 an Information and Summons was issued by a police officer against Mr Gray containing count 1 and count 2. Mr Gray pleaded not guilty.
On 3 June 2022 the Magistrate heard the trial. The Magistrate delivered ex tempore reasons for judgment finding Mr Gray guilty of both counts. The Magistrate convicted Mr Gray and discharged him on entering into a bond to be of good behaviour. The Magistrate disqualified Mr Gray from holding or obtaining a driver’s licence until 31 December 2025.
The trial
The prosecution tendered by consent the following exhibits:
P1Police Statement of Facts of Charge issued on 17 August 2021 relating to the 19 December 2020 and 10 August 2021 driving (which were agreed).
P2     Statement of Agreed Facts in addition to Exhibit P1.
P3     The Expiation Notice.
P4Driver Licence Report issued by the Department for Infrastructure     and Transport on 17 March 2022.
P5Complaint and Summons issued on 5 June 2014 relating to the 2014 prosecution.
P6     Certificate of record relating to the 2014 prosecution.
There was no dispute as to the facts. Mr Gray made a no case to answer submission.
The Magistrate’s reasons for judgment
The Magistrate identified four submissions that he understood were made by defence counsel in support of the no case submission.
First, the Magistrate addressed a submission that he understood was made by defence counsel that section 74(2ac)(b) required the offence or alleged offence resulting in disqualification to have been committed within five years of the charged section 74(2ac) offence. The Magistrate rejected that submission. As I understand it, Mr Gray does not make such a submission on appeal. In any event, I agree with the Magistrate that there is manifestly no time requirement in respect of the disqualification offence in section 74(2ac)(b) at all.
Secondly, the Magistrate addressed a submission that he understood was made by defence counsel that the offence allegedly committed by Mr Gray on 12 February 2012 was not a “drug driving offence” within the meaning of subsection 5(1) of the Traffic Act (which in turn is applied by subsection 5(1) of the Vehicles Act). The Magistrate rejected that submission. Mr Gray does not make such a submission on appeal. In any event, I agree with the Magistrate that manifestly the offence allegedly committed by Mr Gray on 12 February 2012 was a “drug driving offence” as defined.
Thirdly, the Magistrate addressed a submission made by defence counsel that the reference in section 74(2ac)(c)(ii) to “the offence” was a reference to the charged section 74(2ac) offence rather than the offence or alleged offence resulting in disqualification referred to in section 74(2ac)(b). The Magistrate rejected that submission. Mr Gray contends that the Magistrate erred in his construction of section 74(2ac)(c)(ii) in this respect.
Fourthly, the Magistrate addressed a submission that he understood was made by defence counsel that the “other drug driving offence” referred to in section 74(2ac)(c)(ii) must have resulted in a licence disqualification. The Magistrate rejected that submission. Mr Gray does not make such a submission on appeal. In any event, I agree with the Magistrate that there is manifestly no requirement that the “other drug driving offence” referred to in section 74(2ac)(c)(ii) must have resulted in a licence disqualification.
The legislative regime
The legislative regime encompassed provisions of the Vehicles Act and the Traffic Act.
Driving unauthorised
Section 74 of the Vehicles Act has relevantly provided at all material times since before 19 December 2020:
74—Duty to hold licence or learner's permit
(1)     Subject to this Act, a person who—
(a)     drives a motor vehicle of a particular class on a road; and
(b)     is not authorised to drive a motor vehicle of that class on a road but has previously been so authorised under this Act or the law of another State or a Territory of the Commonwealth,
is guilty of an offence.
Maximum penalty: $1 250.
(2)     Subject to this Act, a person who—
(a)     drives a motor vehicle of a particular class on a road; and
(b)     is not and has never been authorised, under this Act or the law of another State or a Territory of the Commonwealth, to drive a motor vehicle of that class on a road,
is guilty of an offence.
Maximum penalty:
For a first offence—$2 500.
For a subsequent offence—$5 000 or imprisonment for 1 year.
(2a)   Subject to this Act, if a person—
(a)     drives a motor vehicle on a road; and
(b)     has, as a consequence of being convicted of a serious drink driving offence, been disqualified from holding or obtaining a licence; and
(c)     has not, since the end of the period of that disqualification, been authorised, under this Act or the law of another State or Territory of the Commonwealth, to drive a motor vehicle,
the person is guilty of an offence.
Maximum penalty: $5 000 or imprisonment for 1 year.
(2ab) Subject to this Act, if—
(a)     a person drives a motor vehicle on a road; and
(b)     the person has been disqualified from holding or obtaining a licence or learner's permit in this State, or in another State or Territory of the Commonwealth, as a consequence of a drink driving offence or an alleged drink driving offence (whether committed, or allegedly committed, in this State or in another State or Territory of the Commonwealth); and
(c)     —
(i)the drink driving offence or alleged drink driving offence was an offence against section 47(1a), 47B(1a), 47E(3a) or 47I(7) of the Road Traffic Act 1961; or
(ii)     if the offence was a prescribed drink driving offence—the person has—
(A)been convicted of at least 1 other prescribed drink driving offence; or
(B)been convicted of or expiated at least 2 other drink driving offences,
committed or allegedly committed within the period of 5 years before the date of commission or alleged commission of the offence; or
(iii)in any other case—the person has been convicted of or expiated at least 2 other drink driving offences committed or allegedly committed within the period of 5 years before the date of commission or alleged commission of the offence; and
(d)     the person has not, since the end of the period of the disqualification referred to in paragraph (b), been authorised, under this Act or the law of another State or Territory of the Commonwealth, to drive a motor vehicle,
the person is guilty of an offence.
Maximum penalty: $5 000 or imprisonment for 1 year.
(2ac) Subject to this Act, if—
(a)     a person drives a motor vehicle on a road; and
(b)     the person has been disqualified from holding or obtaining a licence or learner's permit in this State, or in another State or Territory of the Commonwealth, as a consequence of a drug driving offence or an alleged drug driving offence (whether committed, or allegedly committed, in this State or in another State or Territory of the Commonwealth); and
(c)     —
(i)the drug driving offence or alleged drug driving offence was an offence against section 47(1a), 47BA(1a), 47EAA(9a) or 47I(7) of the Road Traffic Act 1961; or
(ii)the person has been convicted of or expiated at least 1 other drug driving offence committed or allegedly committed within the period of 5 years before the date of commission or alleged commission of the offence; and
(d)     the person has not, since the end of the period of the disqualification referred to in paragraph (b), been authorised, under this Act or the law of another State or Territory of the Commonwealth, to drive a motor vehicle,
the person is guilty of an offence.
Maximum penalty: $5 000 or imprisonment for 1 year.
(2b)An offence against this section is not expiable if the maximum penalty for the offence is $5 000 or imprisonment for 1 year.
(3)For the purposes of this section, a person is authorised to drive a motor vehicle of a particular class on a road if—
(a)     in the case of a motor bike—the person holds a licence or learner's permit that authorises the holder to drive a motor bike of that class; or
(b)     in the case of a motor vehicle that is not a motor bike—
(i)the person holds a licence that authorises the holder to drive a motor vehicle of that class; or
(ii)     the person—
(A)    holds a licence; and
(B)has the minimum driving experience required by the regulations for the grant of a licence that would authorise the driving of a motor vehicle of that class; or
(iii)the person holds a learner's permit that authorises the holder to drive a motor vehicle of that class.
…
(7)     In this section—
(a)     a reference to a drink driving offence includes a reference to an offence against a law of another State or Territory of the Commonwealth that corresponds to an offence against this Act that is within the ambit of the definition of drink driving offence in section 5(1);
(b)     a reference to a drug driving offence includes a reference to an offence against a law of another State or Territory of the Commonwealth that corresponds to an offence against this Act that is within the ambit of the definition of drug driving offence in section 5(1);
(c)     a reference to a prescribed drink driving offence includes a reference to an offence against a law of another State or Territory of the Commonwealth that corresponds to an offence against this Act that is within the ambit of the definition of prescribed drink driving offence in section 5(1).
Subsection 5(1) of the Vehicles Act defines drink driving offences and drug driving offences to have the same meaning as in the Traffic Act. In turn, subsection 5(1) of the Traffic Act defines those terms as follows:
drink driving offence means—
(a) an offence against section 47(1) or (1a) involving the driving of a motor vehicle, or attempting to put a motor vehicle in motion, while so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle; or
(b) an offence against section 47B(1), 47B(1a), 47E(3), 47E(3a), 47I(7) or 47I(14);
drug driving offence means—
(a) an offence against section 47(1) or (1a) involving the driving of a motor vehicle, or attempting to put a motor vehicle in motion, while so much under the influence of a drug as to be incapable of exercising effective control of the vehicle; or
(b) an offence against section 47BA(1), 47BA(1a), 47EAA(9), 47EAA(9a), 47I(7) or 47I(14);
Subsection 5(1) of the Vehicles Act defines prescribed drink driving offences and category 1 and category 2 offences and section 81E of the Vehicles Act defines serious drink driving offences as follows:
prescribed drink driving offence means any drink driving offence other than a category 1 offence;
serious drink driving offence means any drink driving offence other than—
(a) a category 1 offence; or
(b) a category 2 offence that is a first offence;
category 1 offence means an offence against section 47B(1) of the Road Traffic Act 1961 involving a concentration of alcohol of less than .08 grams in 100 millilitres of blood;
category 2 offence means an offence against section 47B(1) or (1a) of the Road Traffic Act 1961 involving a concentration of alcohol of less than .15 grams, but not less than .08 grams, in 100 millilitres of blood;
The structure of section 74 is that subsection 74(1) creates a basic level offence of driving without a licence for which the maximum penalty is a fine of $1,250. Subsection 74(2) creates a more serious offence of driving without a licence if the defendant has never held a licence, resulting in a higher maximum fine of $2,500 for a first offence and a maximum penalty of imprisonment for one year or a fine of $5,000 for a subsequent offence.
Subsections 74(2a), 74(2ab) and 74(2ac) create more serious offences of driving without a licence where the defendant had previously been disqualified from holding or obtaining a licence as a consequence of a drink or drug driving offence and in some cases, depending on the seriousness of that offence, in addition had been convicted of or expiated another one or two drink or drug driving offences. These offences have a maximum penalty of imprisonment for one year or a fine of $5,000.
Subsections 47B(5) and 47BA(6) of the Traffic Act require an expiation notice to be issued and an opportunity to expiate given under the Expiation of Offences Act 1996 (SA) before a person aged 16 years or more is prosecuted for an offence against the subsections respectively if:
·the alleged offence is a first offence; and
·in the case of subsection 47B(5) the alleged offence is a category 1 offence.
Sections 81C and 81D of the Vehicles Act require the Registrar to give written notice to a person that they are disqualified from holding or obtaining a licence for prescribed periods (which vary depending on the circumstances) upon the person expiating:
·a subsection 47BA(1) or 1(a) drug driving offence under the Traffic Act (section 81D); or
·a section 47B(1) drink driving offence under the Traffic Act unless the offence is a first offence or the vehicle in question was alleged to be a prescribed vehicle (primarily a truck, bus or taxi) and the alleged concentration of alcohol was less than .05 grams in 100 millilitres of blood (section 81C).
Issue of licences
Section 75 of the Vehicles Act empowers and requires the Registrar of Motor Vehicles to issue or renew a licence authorising a person to drive a motor vehicle of a particular class on a road for the purposes of subsection 74(3) if the person is of a prescribed age, makes a prescribed application, pays the prescribed fee and complies with any requirements of the Registrar under section 77B.
Sections 79 and 79A of the Vehicles Act, however, preclude the Registrar from issuing a licence or learner's permit to an applicant who has not held a licence within a prescribed period (which varies depending on the requirement) unless:
(a)the applicant has passed an approved theoretical examination (section 79); and
(b)the applicant has held a learner’s permit for a prescribed period and satisfied prescribed requirements relating to the applicant's driving experience (section 79A).

Section 79B applies when defined conditions are satisfied in respect of an applicant for the issue of a licence. Those defined conditions are set out in section 79B(1)(a), (b) and (c) in respect of drink driving offences and section 79B(2)(a), (b) and (c) in respect of drug driving offences. The conditions in subsection 79B(1) largely mirror (although they are set out in a different order to) the conditions set out in section 74(2a)(b) and (c) and (2ab)(b), (c) and (d). Likewise, the conditions in subsection 79B(2) largely mirror the conditions set out in section 74(2ac)(b), (c) and (d).
When section 79B applies, the Registrar is precluded from issuing a licence to the applicant unless:
(a)the applicant produces a report of an approved assessment provider (or otherwise satisfies the Registrar) that the applicant has successfully completed an alcohol or drug dependency treatment program (as applicable) within the previous 60 days and is not dependent on alcohol;
(b)the applicant has been examined by an approved assessment provider to determine whether the applicant is dependent on alcohol or drugs (as applicable) and the Registrar is not satisfied that the applicant is so dependent;
(c)the applicant has been examined by an approved assessment provider to determine whether the applicant is dependent on alcohol or drugs (as applicable), the Registrar was previously satisfied that the applicant was so dependent but the Registrar is now satisfied (on the basis of a further report from such a provider or otherwise) that the applicant is no longer so dependent; or
(d)the applicant is willing (after having been assessed by an approved assessment provider) to accept a licence subject to the mandatory alcohol interlock scheme conditions and the Registrar issues such a licence to the applicant.
Interrelationship between sections 74 and 79B
The interrelationship between section 74 and section 79B of the Vehicles Act is illustrated by comparing subsection 79B(2) with subsection 74(2ac). Subsection 79B(2) provides:
(2)If—
(a)     an applicant for the issue of a licence has been disqualified from holding or obtaining a licence or learner's permit in this State, or in another State or Territory of the Commonwealth, as a consequence of a drug driving offence or an alleged drug driving offence (whether committed, or allegedly committed, in this State or in another State or Territory of the Commonwealth); and
(b)     the applicant has not held a licence or learner's permit, or an interstate licence or interstate learner's permit, since the end of the period of disqualification; and
(c)—
(i)the drug driving offence or alleged drug driving offence was an offence against section 47(1a), 47BA(1a), 47EAA(9a) or 47I(7) of the Road Traffic Act 1961; or
(ii)the applicant has been convicted of or expiated at least 1 other drug driving offence committed or allegedly committed within the period of 5 years before the date of commission or alleged commission of the offence,
the Registrar must, before determining the application for the licence, direct the applicant to submit to an examination by an approved assessment provider to determine whether or not the applicant is dependent on drugs unless the applicant satisfies the Registrar, on the basis of the report of an approved assessment provider or such other evidence as the Registrar may require, that—
(d)     the applicant has successfully completed a drug dependency treatment program not more than 60 days before the date of application for the licence; and
(e)the applicant is not dependent on drugs.
It can be seen that section 79B(2)(a) is materially identical to section 74(2ac)(b), section 79B(2)(c) is materially identical to section 74(2ac)(c) and section 79B(2)(b) is to the same effect as section 74(2ac)(d).
Subsections 74(2ac) and 79B(2) of the Vehicles Act effectively divide drug driving offences into two categories. The first, or basic, category (category A) comprises:
·driving a motor vehicle under the requisite influence of a drug (Traffic Act section 47(1));
·driving a motor vehicle with a prescribed drug in oral fluid or blood (Traffic Act section 47BA(1));
·refusing or failing to submit to a drug screening test, oral fluid analysis or blood test in accordance with the directions of a police officer (Traffic Act section 47EAA(9)); and
·refusing or failing to submit to a blood test when required under section 47I of the Traffic Act (Traffic Act section 47I(14)).
The second, or more serious, category (category B) comprises the corresponding offences with the additional element that a child under the age of 16 years (a child) was present in or on the vehicle at the relevant time (in which event the maximum penalty is greater than for the corresponding basic offence):
·driving a motor vehicle under the requisite influence of a drug when a child is present in or on the vehicle (Traffic Act section 47(1a));
·driving a motor vehicle with a prescribed drug in oral fluid or blood when a child is present in or on the vehicle (Traffic Act section 47BA(1a));
·refusing or failing to submit to a drug screening test, oral fluid analysis or blood test in accordance with the directions of a police officer when a child was present in or on the vehicle at the time of driving (Traffic Act section 47EAA(9a)); and
·refusing or failing to submit to a blood test when required under section 47I of the Traffic Act when a child was present in or on the vehicle at the time of the accident (Traffic Act section 47I(7)).
If the person is disqualified as a result of committing or allegedly committing an offence:
(a)in category A, subsection 74(2ac) and subsection 79B(2) do not apply unless, in addition, the person had been convicted of or expiated another drug driving offence;
(b) in category B, there is no requirement under subsection 74(2ac) or subsection 79B(2) that the person had been convicted of or expiated another drug driving offence.
In an analogous manner, subsections 74(2a) and (2ab) and 79B(1) effectively divide drink driving offences into three categories. The first, or basic, category (category A) comprises driving a motor vehicle with the prescribed concentration of alcohol in blood when the level is category 1 (less than .08 grams in 100 millilitres of blood, as defined in section 47A)(when a child is not present in or on the vehicle)(Traffic Act section 47B(1)).
The second, more serious, category (category B) comprises driving a motor vehicle with the prescribed concentration of alcohol in blood when the level is category 2 (between .08 grams and .1499 grams in 100 millilitres of blood as defined in section 47A) that is a first offence (when a child is not present in or on the vehicle)(Traffic Act section 47B(1) or (1a)).
The third, more serious again, category (category C) comprises:
·driving a motor vehicle under the requisite influence of alcohol (Traffic Act section 47B(1a));
·driving a motor vehicle with the prescribed concentration of alcohol in blood when a child is present in or on the vehicle or when the level is category 2 that is not a first offence or when the level is category 3 or higher (Traffic Act section 47B(1a));
·refusing or failing to submit to an alcotest or breath analysis in accordance with the directions of a police officer (Traffic Act section 47E(3a)); or
·refusing or failing to submit to a blood test when required under section 47I (Traffic Act section 47I(14a)).
If the person is disqualified as a result of:
(a)committing or allegedly committing an offence in category A, subsection 74(2ac) and subsection 79B(2) do not apply unless, in addition, the person had been convicted of or expiated another two drink driving offences within the five year period;
(b)committing an offence in category B, subsection 74(2ac) and subsection 79B(2) do not apply unless, in addition, the person had been convicted of or expiated another two drink driving offences or one other drink driving offence other than a category 1 level offence within the five year period;
(c)committing an offence in category C, there is no requirement under subsection 74(2ac) or subsection 79B(2) that the person had been convicted of or expiated another drink driving offence.
One or two other offences?
Mr Gray contends that, on the proper construction of section 74(2ac)(c)(ii), the requirement that the defendant had been convicted of or expiated “at least 1 other drug driving offence” requires a conviction or expiation of two or more drug driving offences.
It is not evident from the Magistrate’s reasons for judgment that this contention was made before the Magistrate. This contention is not the subject of a ground of appeal. However, the Police raise no issue in relation to these matters and I address this contention on its merits.
Starting with the text of the provision, section 74(2ac)(c)(ii) requires that:
the person has been convicted of or expiated at least 1 other drug driving offence committed or allegedly committed within the period of 5 years before the date of commission or alleged commission of the offence
The words “at least 1 other drug driving offence” plainly connote that the defendant must have been convicted of one or more drug driving offences. They do not connote that the defendant must have been convicted of two or more drug driving offences.
This construction is reinforced by the context. By comparison, section 74(2ab)(c)(iii) imposes a requirement in the case of disqualification for drink driving that the defendant has been convicted of or expiated “at least 2 other drink driving offences”. This cannot be construed as requiring conviction or expiation of three or more drink driving offences. Further, it demonstrates how the legislature phrased a requirement for conviction or expiation of two or more drink driving offences.
The evident purpose of section 74(2ac)(c) also supports this construction. Where the drug driving offence or alleged offence that resulted in disqualification was a category B offence, there is no requirement imposed that the defendant has been convicted of or expiated any other drink driving offences. However, where the offence or alleged offence resulting in disqualification was only a category A offence, there is a requirement that the defendant has also been convicted of or expiated another drug driving offence.
Mr Gray’s contention must be rejected. On the proper construction of section 74(2ac)(c)(ii), the requirement that the defendant had been convicted of or expiated “at least 1 other drug driving offence” only requires a conviction or expiation of one or more drug driving offences.
Five years before which offence?
Mr Gray contends that, on the proper construction of section 74(2ac)(c)(ii), the requirement that the defendant had been convicted of or expiated another drug driving offence (the prior offence) committed or allegedly committed within five years before the commission or alleged omission of “the offence” requires that the prior offence be committed or allegedly committed within five years before the subsection 74(2ac) offence.
Starting with the text of the provision, section 74(2ac)(c)(ii) requires that:
the person has been convicted of or expiated at least 1 other drug driving offence committed or allegedly committed within the period of 5 years before the date of commission or alleged commission of the offence
Considered in isolation, the last two words “the offence” are ambiguous. They might mean the offence or alleged offence that resulted in disqualification (the disqualification offence) under the requirement contained in section 74(2ac)(b). Alternatively, they might mean the section 74(2ac)(c) offence (the substantive offence).
However, the words “commission or alleged commission of” which immediately precede the last two words “the offence” point strongly towards the former construction. Those preceding words mirror the words used in section 74(2ac)(b) in respect of the disqualification offence, which suggest that “the offence” referred to in section 74(2ac)(c)(ii) is the offence referred to in section 74(2ac)(b), namely the disqualification offence. Further, it would be inapposite to describe the substantive offence as being “committed” given that the substantive offence can only be committed if the requirement contained in section 74(2ac)(c) is satisfied.
It is true that the legislature could have added words to make it clear to which offence it is referring in the last two words of section 74(2ac)(c)(ii), such as “the offence referred to in paragraph (b)”, which would have made it clear on the face of the provision that it intended to refer to the disqualification offence. However, equally the legislature could have added words such as “the offence under consideration”, which would have made it clear on the face of the provision that it intended to refer to the substantive offence (the legislature did use those words in subsection 74(6)).
As observed above, paragraph (b) contains no requirement that the disqualification offence be committed within five years before the substantive offence. On Mr Gray’s construction, the disqualification offence could occur at any time (for example 10 years before the substantive offence) but the prior offence must occur within five years before the substantive offence. However, a natural reading of section 74(2ac)(c)(ii) suggests that it was intended that the prior offence must have been committed or allegedly committed before the disqualification offence was committed or allegedly committed.
Turning to the context of section 74(2ac)(c)(ii) within section 74(2ac)(c), the alternative requirement contained in paragraph (c)(i) is that the disqualification offence was a category B offence. In that event, as observed above, there is no requirement that the disqualification offence be committed within five years before the substantive offence. This suggests that the legislature was not concerned with the length of time before the commission of the substantive offence when the earlier drug driving offence or offences were committed. Reading the two subparagraphs together, they appear to require that either the disqualification offence be a category B offence or that it was preceded by a prior drug driving offence committed within the previous five years.
Section 74(2ac)(c)(i) clearly refers back to the disqualification offence the subject of paragraph (b). This renders it more likely that section 74(2ac)(c)(ii) also refers back to the disqualification offence the subject of paragraph (b).
Turning to the context of section 74(2ac)(c) within subsection 74(2ac), as observed above, paragraph (b) requires that the defendant had been disqualified from holding or obtaining a licence as a consequence of a drug driving offence or an alleged drug driving offence. The reference to an “alleged offence” in section 74(2ac)(b), and in turn in section 74(2ac)(c)(ii), is explicable by the fact that a person can be disqualified under section 81D without having pleaded or been found guilty of an offence. Similarly the reference to an alleged offence in section 74(2ac)(c)(ii) is explicable by the reference to a person being convicted of or expiating an offence or alleged offence (which is to be read distributively).
Turning to the context of subsection 74(2ac) within section 74, the offence created by subsection 74(2a) contains no requirement that the disqualification offence be committed within five years before the substantive offence. This renders it less likely that the legislature intended to impose a requirement in the subsection 74(2c) offence that the prior offence be committed within five years before the substantive offence.
Turning to the context of section 74 within Part 3 of the Vehicles Act, as observed above, subsection 79B(2) contains provisions that mirror those contained in subsection 74(2ac). When the same words “the offence” are used at the end of section 79B(2)(c)(ii), it is plain that they are referring to the disqualification offence because section 79B does not create any offence (but addresses the issue of driver’s licences to potentially drug or alcohol dependent drivers). Given the clear correspondence between subsection 79B(2) and subsection 74(2ac), it is highly unlikely that the legislature intended the same words “the offence” in the context of the same requirement to have different meanings as between the two subsections.
Turning to the historical context of subsection 74(2ac), it was inserted (together with subsection 74(2ab) applying to drink driving) by the Statutes Amendment (Drink and Drug Driving) Act 2017 (SA). The same amending Act also substituted subsections 79B(1) and (2) for the previous subsections 79B(1) and (2) to correspond with the new subsections 74(2ab) and 74(2ac).
Before the amendments effected by the amending Act, old subsections 79B(1) and (2) contained provisions referring to “the offence” which it was clearly a reference to the disqualification offence. It is evident that, when the amending Act was drafted, the draftsperson first drafted the substitution (or in substance the amendment) of subsections 79B(1) and (2), retaining the references to “the offence”, and then drafted the completely new subsections 74(2ab) and 74(2ac) using the same wording. This reinforces the consideration referred to in the previous paragraph.
Finally, turning to the evident purpose of section 74(2ac), it is to create a substantive offence in circumstances in which the defendant was required by section 79B to be assessed for drug dependency before issue of a licence after the defendant has been disqualified from holding a licence due to drug driving. This reinforces the consideration referred to in paragraph [60] above.
Mr Gray’s contention must be rejected. On the proper construction of section 74(2ac)(c)(ii), the requirement that the defendant had been convicted of or expiated another drug driving offence (in addition to the disqualification offence) committed or allegedly committed within five years before the commission or alleged omission of “the offence” requires that the drug driving offence be committed or allegedly committed within five years before the disqualification offence.
Conclusion
I dismiss the appeal. I will hear the parties concerning costs.