John Eder Riley v RAB Garth Christian Seip
[2006] ACTCA 5
JOHN EDER RILEY v RAB GARTH CHRISTIAN SEIP
[2006] ACTCA 5 (27 March 2006)
STATUTES – Legislation Act 2001 (ACT) – provision in s 62 making registrable instruments unenforceable if not “notified” – general definition of “notification” in s 63 – registrable instrument previously notified in manner apparently falling within that definition – whether unenforceable unless renotified in accordance with s 61.
COSTS – order nisi for review – s 219F(8) Magistrates Court Act 1930 – consideration of the public interest.
Road Transport (Alcohol and Drugs) Act 1977, s 11, s 14, s 19, s 41
Legislation Act 2001 (ACT), s 61, s 62, s 63, s 88, s 123
Evidence Act 1995 (Cth), s 138
Magistrates Court Act1930 (ACT), s 219F(8)
ACT Special Gazette, 29 February 2000
Latoudis v Casey (1990) 170 CLR 534
McEwan v Seely (1972) 21 FLR 131
R v Goia (1988) 19 FCR 212
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 38-2005
No. SC 195 of 2005
Judges: Higgins CJ, Crispin P & Gray J
Court of Appeal of the Australian Capital Territory
Date: 27 March 2006
IN THE SUPREME COURT OF THE ) No. ACTCA 38-2005
) No. SC 195 of 2005
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JOHN EDER RILEY
Appellant
AND:RAB GARTH CHRISTIAN SEIP
Respondent
ORDERS
Judges: Higgins CJ, Crispin P & Gray J
Date: 27 March 2006
Place: Canberra
THE COURT ORDERS THAT:
Each party pay their own costs of the appeal.
IN THE SUPREME COURT OF THE ) No. ACTCA 38-2005
) No. SC 195 of 2005
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JOHN EDER RILEY
Appellant
AND:RAB GARTH CHRISTIAN SEIP
Respondent
REASONS FOR JUDGMENT
THE COURT:
On 24 February 2006 we dismissed an appeal against a decision of Connolly J to make absolute an order nisi that had required the appellant to show cause why a decision of the Magistrates Court, dismissing an information against him, should not be reviewed. We reserved our reasons for our decision to uphold the appeal and also reserved the question of costs pending the receipt of written submissions concerning that issue.
The information laid before the Magistrates Court alleged that the appellant had committed an offence against s 19 (1) of the Road Transport (Alcohol and Drugs) Act 1977 (“RT (A & D) Act”) in that, being a driver of a motor vehicle in a public street in the Australian Capital Territory, he had within the prescribed relevant period more than the prescribed concentration of alcohol in his blood. That period is prescribed by s 14(1)(a)(ii) (RT (A & D) Act).
The offence was allegedly committed on the 20 August 2004. The appellant, who had been involved in a single vehicle accident, was within the prescribed period, directed to undertake a “screening test” by breathing into a device, known as a Lion Alcolmeter SD-400, held by an attending police officer. When a positive result was attained, the appellant was arrested and taken to the Tuggeranong Police Station for a breath analysis which revealed a blood alcohol level of 0.067 grams per millimetre of blood. This analysis also took place within the prescribed period. The appellant was then charged with the offence in question.
The initial proceedings were heard by Magistrate Somes on 16 March 2005. During the course of the hearing it was contended that the screening test had been invalid because, whilst the Lion Alcolmeter SD-400 had been duly approved by the Minister for use as a screening device, the instrument providing notice of that approval (“the notice”) had not been notified by entry on the ACT Legislation Register (“the register”) as, it was submitted, was then required by s 61 of the Legislation Act 2001 (ACT) (“the L Act”). In the absence of such notification, it was contended that the instrument had been unenforceable by reason of s 62 of that Act. Hence, the attending police officer had not been entitled to require the appellant to breathe into the device, to take him into custody as a consequence of any reading it may have displayed or, subsequently to require him to undertake a breath analysis at the police station. The appellant submitted that it would follow that the evidence obtained by means of that breath analysis had been illegally obtained and, unless the court determined under s 138 of the Evidence Act 1995 (Cth) that it was desirable to do so, having regard to the matters required to be taken into account, the evidence could not be admitted. The learned Magistrate accepted these arguments and proceeded to dismiss the information. It might also have been objected that the relevant certificates under s 41 (RT (A & D) Act) lacked statutory force as a condition precedent, that is, a valid screening test to detention pursuant to s 11 (RT (A & D) Act).
The respondent then sought to have this decision reviewed. Connolly J granted the order nisi on 7 April 2005 and it was made absolute on 26 July 2005.
The appellant relied upon a submission that the L Act revealed a legislative scheme pursuant to which government agencies were to be required to provide notification of all registrable instruments by entering them on the register or, if that is not practicable, by publishing them in the Gazette. There was a 12 month “period of grace” in which registrable instruments issued prior to the enactment of the relevant sections of the L Act could be notified in accordance with this scheme, but at the end of that period any registrable instruments not so notified became unenforceable. The notice had been a registrable instrument and it had not been suggested that it would have been impracticable for it to have been entered in the register; yet that had not been done by the time of the alleged offence. Hence, the Magistrate had rightly concluded that the notice had been ineffective and the chain of events that culminated in the breath analysis had been tainted by reason thereof.
It was obviously necessary to consider this submission in the context of the statutory provisions upon which it was founded.
The relevant portions of s 61 of the L Act were as follows:
(1)If a registrable instrument is made, the maker of, or the appropriate person for, the instrument may ask the parliamentary counsel to notify the making of the instrument.
(2)If the maker of, or the appropriate person for, a registrable instrument asks the parliamentary counsel to notify the instrument and complies with the requirements (if any) prescribed under the regulations, the parliamentary counsel must-
(a)notify the instrument in the register; or
(b)if that is not practicable or a copy of the material on a relevant part of the register is not accessible at 1 or more approved websites when the instrument is to be notified-notify the instrument in the Gazette.
Whilst, as Justice Connolly pointed out, the language employed in this section would suggest that it was intended to operate only prospectively, it was submitted that s 123 of the Act demonstrated that it was intended to apply to pre-existing registrable instruments. Section 123 was in the following terms:
(1)Sections 61 (Notification of registrable instruments) and 62 (Effect of failure to notify registrable instrument) do not apply to a registrable instrument made before the commencement of this section if the instrument, or the making of the instrument, has been published or notified in the Gazette before the commencement.
(2)Sections 61 and 62 do not apply to any other registrable instrument made before the commencement of this section if neither the instrument, nor the making of the instrument, were required to be published or notified in the Gazette.
(3)This section expires 1 year after it commences.
It was this section that was said to give rise to the “period of grace” during which government agencies would be required to enter all registrable instruments on the register, save only in the limited range of cases in which listing in the Gazette was authorised by section 61 of the L Act as an alternative to that course. It was suggested that the section reflected a legislative intention to ensure that the contents of registrable instruments would, wherever practicable, be readily available to the public.
The consequences of non-compliance were said to be clear from the terms of s 62 of the L Act , which provided that:
(1)A registrable instrument is not enforceable by or against the Territory or anyone else unless it is notified.
Had ss 61, 62 and 123 been the only relevant sections, the argument may have been compelling. However, as Connolly J observed, the Magistrate’s attention was not drawn to s 63 of the L Act which was in the following terms:
(1) In an Act or statutory instrument, a reference to the notification of a registrable instrument is a reference to the instrument having being notified in the register or Gazette.
It was not disputed that the instrument providing notice of approval of the screening device had been notified in the ACT Special Gazette of 29 February 2000.
At face value, this would have constituted due “notification” and s 62 would not have applied. It was argued, however, that the reference in s 63 to notification in the Gazette should be construed as applicable only to notifications made after the enactment of s 61 and in circumstances in which the section permitted that course in lieu of notification on the register. This construction was said to be required as an implication from what the appellant had submitted was the effect of the suggested statutory scheme mentioned earlier and, in particular, by the operation of s 123 which, it was said, demonstrated that s 61 was intended to apply to pre-existing registrable instruments.
Connolly J dismissed these contentions, holding that s 63 should not be read down in the manner suggested, and that the notice of approval had been duly notified by reason of it being notified in the Gazette.
Despite the carefully crafted submissions of Mr Hastings QC, who appeared for the appellant, we are unable to see any basis for finding that, in doing so, his Honour fell into appealable error.
There is nothing in ss 61 or 62, or in s 63 itself, to suggest that the “gazette” (or “Gazette”) in s 63(1) should be read down to apply only to an Australian Capital Territory Gazette published after the Legislation Act 2001 came into force.
The appellant’s argument was really founded upon the proposition that s 123 provided a basis for reading down the “notification” provided for in s 61 in that way. However, s 123 did not refer to s 63, but only to ss 61 and 62 and, as we have mentioned, neither of those sections refers to s 63 or contains any provision purporting to qualify the definition of “notification” that it contains.
Section 61 merely authorises the “maker” of an instrument, or other appropriate persons, to ask the Parliamentary Counsel to “notify” such instruments and imposes a duty upon the Parliamentary Counsel to do so. Hence, even if s 61 were to be construed, in the light of s 123, as applying to pre-existing registrable instruments, it would only have the effect of requiring the notification of such instruments in the manner specified in the section. It could not, of itself, make any registrable instrument not so notified unenforceable.
Section 62 merely provides that a registrable instrument is not enforceable unless notified. If that section were to be construed as applying to pre-existing registrable instruments, its application to them would still be dependent upon the construction of the word “notified” and it is inconceivable that this term was not intended to be construed by reference to the definition of “notification” in s 63, which is, of course, the next section in the Act.
Hence, there is nothing in the language of the sections upon which the appellant relied to require the conclusion for which he has contended. Furthermore, whilst it may have been considered desirable to have registrable instruments entered in the register whenever practicable, we are unable to deduce a legislative intention that any pre-existing instruments not renotified in accordance with s 61 should become ipso facto unenforceable, irrespective of any previous notification, or existing public awareness of the instruments in question, or the period during which they had been in operation, or their importance to the ACT community.
We found it unnecessary to consider the precise scope of s 123 or to address the appellant’s arguments that his Honour had fallen into error in finding that the “transitional effect” of that section had been effectively extended by s 88 of the L Act.
In our view, the notification in the Gazette on 29 February 2000 was sufficient to make the instrument effective and it did not cease to be effective by reason of the subsequent amendments to which we have referred.
For these reasons we dismissed the appeal.
We have considered the written submissions of counsel concerning the costs of the appeal but think it unnecessary to deal specifically with each of the arguments advanced. It is true that the appellant failed in the proceedings before us as he did before Connolly J. However, his argument was accepted at first instance and, whilst we have come to the same conclusion as Connolly J, our reasons have not been entirely coextensive with those of his Honour. We are unable to find that the appellant acted unreasonably in seeking to uphold the initial decision in his favour or in maintaining the relevant contentions before us. Furthermore, we were informed that there were a large number of similar cases pending in the Magistrates Court that had been adjourned to enable the parties to reconsider their positions in the light of our decision on this appeal, and it was clearly in the public interest to have an authoritative determination of the relevant principles. Whilst none of these factors is necessarily conclusive, we have ultimately concluded that each party should bear his own costs.
In coming to this conclusion, we also bear in mind s 219F(8) of the Magistrates Court Act1930 (ACT), that whatever the result of a hearing of a review application where an order nisi for review has been granted, the Supreme Court must order that the costs of and incidental to the appeal are payable by the appellant. Without further considering the question of costs orders which might be made in favour of successful informants, we do accept the Director of Public Prosecution’s concession that a successful informant in summary proceedings, even on appeal, is not in the same position as a matter of public policy and of justice as a successful defendant. (See Latoudis v Casey (1990) 170 CLR 534, 544; McEwan v Seely (1972) 21 FLR 131, 135; R v Goia (1988) 19 FCR 212, 214.)
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 27 March 2006
Counsel for the Appellant: Mr P Hastings QC
Solicitor for the Appellant: S & T Lawyers
Counsel for the Respondent: Mr R Refshauge SC
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 24 February 2006
Date of judgment: 27 March 2006
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