Jarvis v Angok
[2009] WASC 342
•20 NOVEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: JARVIS -v- ANGOK [2009] WASC 342
CORAM: BLAXELL J
HEARD: 5 AUGUST 2009
DELIVERED : 20 NOVEMBER 2009
FILE NO/S: SJA 1056 of 2009
BETWEEN: PETER BEVAN JARVIS
Appellant
AND
AKECH DAU ANGOK
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE G LAWRENCE
File No :JO 2897 of 2009
Catchwords:
Criminal law - Road traffic offence - Holder of learner's permit driving a vehicle while unaccompanied by a driving instructor - Dismissal of charge of unauthorised driving contrary to s 49 of Road Traffic Act - Whether holder of learner's permit can commit an offence against s 49
Legislation:
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 49, reg 50
Road Traffic Act 1974 (WA), s 42, s 43, s 49, s 50
Road Traffic Amendment Act (No 2) 2007 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms C J Thatcher
Respondent: Ms K J Farley
Solicitors:
Appellant: State Solicitor for Western Australia
Respondent: Legal Aid (WA)
Case(s) referred to in judgment(s):
CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384
Project Blue Sky v ABA (1998) 194 CLR 355
Smith v Hope [2001] WASCA 287
BLAXELL J: On 14 November 2008, Akech Dau Angok was stopped by police while driving a motor vehicle. Mr Angok did not hold a motor driver's licence, but he held a learner's permit authorising him to drive while accompanied by a driving instructor. There was no driving instructor in the vehicle, and he was charged with an offence under s 49(1)(a) of the Road Traffic Act 1974 (WA) of driving a motor vehicle while not authorised to do so under Pt IVA of the Act.
Mr Angok pleaded not guilty to this charge on the basis that he had committed a different offence. In that regard, he admitted an offence against s 50 of the Act, of holding a learner's permit and driving a motor vehicle while unaccompanied by a driving instructor. Following a trial on the papers (pursuant to s 66 of the Criminal Procedure Act 2004), Magistrate G Lawrence dismissed the charge against Mr Angok. His Honour essentially found that:
(1)The offence under s 49(1)(a) of the Road Traffic Act does not apply to the holder of a learner's permit, and
(2)At the time that Mr Angok drove a motor vehicle unaccompanied by a driving instructor, he was authorised to drive under Part IVA of the Act.
The appellant now appeals from the Magistrate's decision on the ground that the above findings were errors of law.
Legislative framework
Part IVA of the Road Traffic Act has the heading 'Authorisation to drive'. Division 2 of that Part (headed 'Driver Licensing') provides for regulations now known as the Road Traffic (Authorisation to Drive) Regulations 2008 (WA). Section 42 requires that those regulations 'together with this Part' provide for a driver licensing scheme under which the Director‑General grants people licences to drive motor vehicles on roads. Section 42(3) further states that the regulations may:
(e)prescribe requirements for the holding of a licence under this Part authorising the holder to drive when learning that may differ from the requirements for the holding of a driver's licence appropriate for that driving when not learning.
In Div 3 of Pt IVA (headed 'Learner's Permit') s 43 (1) allows the Director‑General to issue a learner's permit which authorises a person to drive a motor vehicle 'solely for the purpose of learning to drive it'. Section 43(2) stipulates that the permit does not authorise driving except in the course of instruction by a driving instructor. Regulation 49(3)(a) prescribes a condition of every learner's permit that 'the learner has to be accompanied by the instructor'. Regulation 50(1) further provides that:
(1)The authorisation that a learner's permit gives to drive a motor vehicle does not apply while the vehicle is being driven in contravention of the condition specified in regulation 49(3)(a) but continues to apply while the vehicle is being driven in contravention of any other condition.
Regulation 50(2) makes it an offence to contravene any condition of a learner's permit other than the condition under reg 49(3)(a) that the learner be accompanied by the instructor. However, a breach of the latter condition is covered by s 50 of the Act which provides:
50.Unauthorised driving by learner drivers
The holder of a learner’s permit shall not drive a motor vehicle except in conformity with any conditions to which the permit is subject and unless accompanied by a driving instructor under whose instruction the permit authorises the holder to drive seated beside the holder …
Penalty: 6 PU.
Mr Angok was charged with an offence under s 49, which provides:
49.Driving while unlicensed or disqualified
(1)A person who -
(a)drives a motor vehicle on a road while not authorised under Part IVA to do so
…
commits an offence
In the particular circumstances in which Mr Angok drove, an offence against either of s 49 or s 50 carries the same penalty of six penalty units ($300). However, for an offence against s 49 there is an additional sanction under s 51(5)(a) of a mandatory minimum licence disqualification of three months. An offence against s 50 does not attract any such licence disqualification.
It is important to note that Pt IVA of the Act is in a state of transition due to an ongoing process of reform to implement the National Driver Licensing Scheme (which has been agreed to by all States and Territories). These reforms commenced in 2000, and include provisions in the Road Traffic Amendment Act (No 2) 2007 (WA), and the Road Traffic (Authorisation to Drive) Act 2007 (WA), which are still to be proclaimed. When this legislation is fully implemented, the provisions regarding learner's permits will be removed from Pt IVA of the Road Traffic Act, and replicated in the Road Traffic (Authorisation to Drive) Act 2007. Accordingly, the legislation contemplates that s 49 will have no possible application to the holder of a learner's permit who drives without an accompanying driving instructor. The only possible charge in those circumstances will be under s 50 of the Act.
It is also important to note that in the course of these reforms, there were two successive amendments to s 50 of the Act, both of which commenced on 30 June 2008. Under the first of these amendments (s 9 of the Road Traffic Amendment Act 2006), s 50 would have read:
The holder of a learner's permit shall not drive a motor vehicle except in conformity with any conditions to which the permit is subject and unless accompanied by a driving instructor with whom the holder is authorised to drive under section 43(2) ...
The second amendment (s 25 of the Road Traffic Amendment Act (No 2) 2007), deleted the words 'with whom the holder is authorised to drive under section 43(2)' and substituted the following words:
... under whose instruction the permit authorises the holder to drive.
The explanatory memorandum which accompanied the second amendment stated that the first amendment had caused a drafting ambiguity in s 50. The explanatory memorandum continued:
Section 50 as amended will contain an incorrect inference that it is the fact of being accompanied by a person of this class that authorises the learner driver to drive.
This clause will amend section 50 to make it clear that it is the learner's permit that confers authorisation upon the learner driver to drive, and then only while the learner driver complies with any conditions to which the learner's permit is subject and is accompanied by a person belonging to one of the classes of person mentioned above.
The Magistrate's reasons for decision
The Magistrate was of the view that there was a latent ambiguity in the words 'while not authorised under Pt IVA' in s 49. In this regard (and as I understand His Honour's reasons), there was an issue whether the words were restricted to persons who were not authorised to drive at all, or whether they extended to holders of learner's permits who were authorised to drive subject to compliance with conditions. Put another way, the question was whether it was Mr Angok's driving which was 'unauthorised', rather than him being 'not authorised' to drive, and His Honour considered that this was more than a matter of mere semantics.
In seeking to resolve this ambiguity, the Magistrate noted that the heading of s 49 was Driving while unlicensed or disqualified, and that the definition of driver's licence in s 5 of the Act specifically excluded a learner's permit. Furthermore, the internal structure of Pt IVA which had separate divisions for Driver licensing and Learner's permit was replicated by the separate provisions in s 49 and s 50. This supported a construction which limited the application of s 49 to persons who have no authorisation to drive at all.
In contending that s 49 extended to holders of learner's permits, the prosecution relied upon the authority of Smith v Hope [2001] WASCA 287, where McLure J (in a single judge decision) held (at [24]):
[T]he holder of a valid learner's permit may be charged under s 49 of the Act in circumstances where the holder has driven but not in compliance with the conditions of the permit. That is, s 49(1) is made subject to the existence and compliance with the conditions of a learner's permit. If s 49(1) was not expressly made subject to s 48C of the Act, then a person would be in breach of s 49(1)(a) notwithstanding that he was the holder of a valid learner's permit and at the material time was complying with the requirements thereof. So, too, with drivers whose licences were issued overseas (s 48D), or elsewhere in Australia (s 48E and s 48F). On a proper construction of the Act, s 49 does not apply provided the relevant driving is duly authorised by any of s 48C to 48F of the Act. In circumstances where the act of driving is not authorised under s 48C because of non-compliance with the statutory and other requirements, a driver will commit an offence against s 49 and s 50 of the Act and the choice of charge will be a matter of prosecutorial discretion.
However, His Honour noted that this passage was obiter dictum, and that it was based on provisions which had been extensively amended in recent years. In 2001, s 49 had read (relevantly) as follows:
(1) Subject to this section and to sections 48C to 48F, every person who -
(a)drives a motor vehicle of a class for which he is not the holder of the appropriate, valid driver's licence; or
(b)…
on a road, commits an offence.
His Honour held that McLure J's dictum had been overtaken by the subsequent amendments, and that:
On an application of certain principles of statutory [construction] to the legislation as it is currently expressed, the ambiguity that resides within s 49 so far as the section's application to learner drivers is now removed. The section I find does not apply to a learner driver and on that basis the accused will be acquitted of the charge preferred.
I find that the only other interpretation of the section in these circumstances open is that an ambiguity remains. Applying the principles stated by Gibbs J in Beckwith v R (1976) 12 ALR 333 that ambiguity or doubt must be resolved in favour of the accused and therefore entitles him to an acquittal.
The Magistrate also considered that if he was wrong with this construction of s 49, Mr Angok was, nevertheless, authorised to drive. In that regard, His Honour held that s 43(2) did not render the authorisation under the permit void when the accused set off driving without an instructor. Driving in breach of the condition did not, for example, prevent his subsequent participation in a driving lesson with a licensed instructor, so long as the Director‑General had not cancelled the learner's permit in the meantime. In His Honour's view:
It is not the conditions that authorise the person to drive, it is the permit and the permit remains until it expires or is cancelled or the right to hold or obtain a licence is taken away by way of disqualification. I therefore find that at the relevant time the accused was authorised to drive. The prosecution has therefore not satisfied me as a matter of law that the accused was not authorised and is entitled to be acquitted of the charge on this basis.
The merits of the appeal
The issue of construction which is raised by the present appeal is relatively simple. The question is whether s 49(1) applies only to drivers who are not authorised by Pt IVA to drive in any circumstances at all, or whether it also extends to holders of learner's permits who breach the condition which authorises them to drive.
If the narrower construction is to be applied, then the holder of a learner's permit who drives without an accompanying driving instructor commits an offence against s 50 alone. If, on the other hand, the wider construction is correct, then the situation would be the same as in Smith v Hope, with an offence against both s 49 and s 50, and the choice of charge being a matter for prosecutorial discretion. (I nevertheless agree with the Magistrate that, by reason of the recent legislative amendments, the decision in Smith v Hope is no longer an authority as to the proper construction of the present s 49.)
Whether at common law, or under s 18 of the Interpretation Act 1984 (WA), the primary object of statutory construction is that a provision should be construed in a manner that is consistent with the language and purpose of the statute as a whole. (Project Blue Sky v ABA (1998) 194 CLR 355, 381 ‑ 382). The overall statutory context is to be taken into account at the beginning of the process of construction and not merely when some ambiguity is thought to arise. This requires a consideration of the 'mischief' which the statute was intended to remedy, as well as the general purpose and policy underlying the particular provision. When this is done, it may well be that the literal meaning of the provision has to give way to an alternative construction which is reasonably open and which more closely conforms to the legislative intent (Blue Sky op cit, CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384, 408).
In my view, the literal meaning of the relevant provisions tends to favour the wider construction of s 49 which the appellant contends to be correct. In this regard, s 43(2) and reg 50 expressly provide that there is no authorisation to drive under a learner's permit when the driver is unaccompanied by a driving instructor. As the act of driving in these circumstances is clearly 'not authorised under Part IVA', it is but a small step in the process of construction to conclude that the person who so drives is similarly 'not authorised'.
On the other hand, it is also clear that while the holder of a learner's permit drives without an accompanying driving instructor, the permit continues to authorise driving which complies with s 43. Accordingly, it cannot be said that the holder of the learner's permit is not (in this sense) authorised to drive under Pt IVA. In my opinion, it follows that there is a reasonably viable alternative construction of s 49 which raises the potential ambiguity identified by the Magistrate.
I also consider that this alternative and narrower construction is more consistent with the internal structure of Pt IVA, and with the overall driver's licence scheme mandated by s 42. In this regard, it is significant that s 50 creates a separate and specific offence when the holder of a learner's permit drives without an accompanying driving instructor. The express reference in reg 50(2) excluding its application to a breach of reg 49(3)(a) further points to the significance of s 50. Given this context, there is very little scope for s 50 to operate if the wider construction of s 49 is adopted.
The headings to each of s 49 and s 50 provide further support for the narrower construction of s 49. Although the headings do not form part of the Act (s 32(2) of the Interpretation Act1984), they are a valid aid to construction and indicate that s 49 is concerned with 'driving while unlicensed or disqualified', while 'unauthorised driving by learner drivers' is dealt with by s 50.
A further and most compelling consideration which supports the narrower construction of s 49 is the second amendment to s 50 (effected by the Road Traffic Amendment Act (No 2) 2007). That amendment was proclaimed on the same date (30 June 2008) that the present s 49, and the Road Traffic (Authorisation to Drive) Regulations 2008 came into effect. The second amendment to s 50 corrected a 'drafting ambiguity' in the first amendment and made it clear that it was the learner's permit which authorised a learner driver to drive, and not the presence of the accompanying driving instructor. In carefully considering these amendments to s 50, Parliament also left the section heading intact. In my view, the second amendment to s 50 is inconsistent with any intent that s 49 would apply to unauthorised driving by learner drivers. A construction of s 49 which excludes its application to learner drivers is also consistent with the ultimate effect of the existing legislation when it is fully proclaimed.
Conclusion
For all of the above reasons, I conclude that, on a proper construction of s 49, the words 'not authorised under Part IVA' do not apply to unauthorised driving by the holder of a learner's permit. The Magistrate was correct in finding that the charge against Mr Angok should be dismissed. It follows that the appeal should also be dismissed.
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