Kuyer v Small
[2012] WASC 442
•21 NOVEMBER 2012
KUYER -v- SMALL [2012] WASC 442
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 442 | |
| Case No: | SJA:1042/2012 | ON THE PAPERS | |
| Coram: | BEECH J | 21/11/12 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal upheld Judgment of acquittal entered | ||
| B | |||
| PDF Version |
| Parties: | PATRICK NICHOLAS KUYER RYAN JOHN SMALL |
Catchwords: | Criminal law and procedure Driving while not authorised to do so Whether averment provision applied to the charge Turns on own facts |
Legislation: | Road Traffic Act 1974 (WA), s 49, s 98 |
Case References: | Charlton v Rogers; Ex parte Charlton (1985) 82 FLR 40 Jambajimba v Svikart (1984) 71 FLR 287 Starling v Edmunds [2012] WASC 14 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
RYAN JOHN SMALL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE G R SMITH
File No : PE 53571 of 2011
Catchwords:
Criminal law and procedure - Driving while not authorised to do so - Whether averment provision applied to the charge - Turns on own facts
Legislation:
Road Traffic Act 1974 (WA), s 49, s 98
(Page 2)
Result:
Appeal upheld
Judgment of acquittal entered
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : Frichot & Frichot
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Charlton v Rogers; Ex parte Charlton (1985) 82 FLR 40
Jambajimba v Svikart (1984) 71 FLR 287
Starling v Edmunds [2012] WASC 14 (S)
(Page 3)
- BEECH J:
Introduction
1 The appellant appeals against his conviction of driving while not authorised to do so and while his authority to drive was suspended. The respondent concedes that the appeal should succeed. For the reasons that follow, I consider the concession is rightly made, and would uphold the appeal.
The charge
2 The appellant was charged that on 5 November 2011 at Hamersley he drove a specified car 'whilst not being a person authorised by pt IVA of the Road Traffic Act 1974 (WA) (the Act) and whose authority to drive was at the time suspended'.
3 That charge is an offence against s 49(1)(a) and s 49(3)(c) of the Act. Section 49(1)(a) provides that a person who drives a motor vehicle on a road while not authorised under pt IVA to do so commits an offence. Section 49(3)(c) creates a different penalty regime in respect of an offence under s 49(1)(a) that is committed by a person whose authority to drive is for the time being suspended (with an immaterial exception).
The trial
4 The prosecution case at trial was that, prior to 5 November 2011, the appellant's driver's licence had been suspended for six months. It is common ground that notice to the appellant was necessary for the suspension relied on by the prosecution to come into operation. Under s 104K(3)(c) and s 104K(4) of the Act, the period of disqualification is to be specified on the notice of disqualification to be given to the person, and must commence on a day after the notice is given. By s 104R(2) notice must be given to the person to whom it is addressed either personally or in a way prescribed in the regulations.
5 The prosecution case at trial was that the s 104K notice had been given to the appellant personally when he visited the licensing centre in Albany.
6 The prosecution called Ms Murphy, who was working at the Albany licensing centre on that day. The magistrate was satisfied that Ms Murphy dealt with the appellant on that day and attempted to serve him with the relevant notice.
(Page 4)
7 By s 6A(1) and s 6A(2) of the Act, the Director General (of the Department of Transport) may delegate in writing any power or duty of the Director General under a provision of the Act. No party led any evidence to establish whether Ms Murphy was delegated the ability to serve notices pursuant to s 104K and s 104R.
8 However, the learned magistrate relied upon the averment provisions in s 98 of the Act. That section provides relevantly as follows:
Proof of certain matters
(1) In any prosecution or proceedings for an offence against this Act an averment in the prosecution notice that any person is or was an owner of, or a responsible person for, a vehicle or became an owner of, or a responsible person for, a vehicle on any date or that any person is or was not the holder of any particular licence (either personal or in respect of any vehicle), or that the vehicle was driven or used on a road or any place to which the public is permitted, whether on payment of a fee or otherwise, to have access shall be deemed to be proved in the absence of proof to the contrary.
9 The magistrate held that the averment in the charge that the appellant was not a person authorised by pt IVA of the Act to drive was, in substance, the same as an averment that he was not the holder of any particular licence, in the sense in which that phrase is used in s 98 (ts 31). Thus, he found, s 98 was engaged. Further, the magistrate found that there was no proof to the contrary (ts 31 - 32). Consequently, the magistrate found the charge to be proved.
10 The magistrate imposed a fine of $400, disqualified the appellant from holding or obtaining a motor driver's licence for nine months and awarded costs of $64.
Grounds of appeal
11 The appellant's grounds of appeal are as follows:
1. The learned Magistrate erred in law in holding that the averment provisions of Section 98 of the Road Traffic Act 1974 operated in this case to deem that the accused was a person whose authority to drive was at the relevant time suspended when he should have found in the circumstances of this case that Section 98 could only operate to deem that the accused was not at the relevant time the holder of any particular licence and not, as asserted in the Prosecution Notice, that the accused was a person whose authority to drive was at the time suspended.
(Page 5)
- 2. The learned Magistrate erred in law by holding that the absence of evidence that the witness [Ms Murphy] was properly authorised by the Director General to give a licence disqualification notice pursuant to Section 104R of the Act did not displace the operation of the averment provision in Section 98 of the Act when he should have found that as there was no evidence that the licence disqualification notice was given in accordance with Section 104R of the Act, there was no evidence that the accused's motor drivers licence was suspended at the relevant time.
3. The learned Magistrate erred in law in finding that the effect of Section 98 of the Act was that the prosecution did not have to prove that the licence disqualification notice was properly served and that section 98 means that the accused is taken to have been properly served with the licence disqualification notice and thereby subject to a licence suspension unless proved to the contrary.
4. The learned Magistrate impermissibly reversed the burden of proof on the issue of whether the licence disqualification notice was served in accordance with Section 104R of the Act and should have found that as there was no evidence that the licence disqualification notice was served in accordance with Section 104R the prosecution had failed to prove that the accused's motor drivers licence was suspended at the relevant time.
5. The learned magistrate erred in law by holding that the prosecution's case had proved beyond reasonable doubt that a licence disqualification notice had been given to the accused when in the circumstances of this case the evidence was not capable of proving beyond reasonable doubt that the notice had been given to the accused.
The disposition of the appeal
12 The respondent concedes grounds 1, 3 and 4. It is not necessary to deal with the other two grounds.
13 In my view the respondent's concession is rightly made and I would uphold these grounds.
14 Given that the effect of invoking averment provisions is to reverse the burden of proof, averments must be drawn with precision: Jambajimba v Svikart (1984) 71 FLR 287, 292; Charlton v Rogers; Ex parte Charlton (1985) 82 FLR 40, 41.
15 The allegation the subject of the averment was that the appellant was not authorised to drive under pt IVA of the Act. That invites attention to the scheme of pt IVA.
(Page 6)
16 Consideration of that scheme reveals that being the holder of a licence is one means of being authorised to drive under pt IVA, but not the only means.
17 Section 42 of the Act states that the regulations are to provide for a driver licensing scheme. A person with a learner's permit is authorised to drive a motor vehicle on a road solely for the purpose of learning to drive: s 43. Section 44 states that the regulations may provide that a motor vehicle of a class or kind prescribed in the regulations may, either generally or in prescribed circumstances, be driven on roads without the driver holding a driver's licence. Section 44B provides that the regulations are to provide for the Director General to recognise the driving authorisations of other jurisdictions and to specify the effects of that recognition for the purposes of the Act.
18 Section 98(1) refers to an averment in the prosecution notice that a person is or was not the holder of any particular licence. In the framework of the statutory scheme, as I have outlined it, I am not persuaded that a broad averment in terms that a person is not authorised under pt IVA to drive a motor vehicle on a road is within the ambit of s 98(1).
19 Section 6A(7) of the Act provides that nothing in that section limits the ability of the Director General to perform a function through an officer or agent. That section was not relied upon or referred to at the trial. The respondent concedes that it was not proved beyond reasonable doubt that Ms Murphy was an officer or agent of the Director General.
20 The magistrate based his conviction on the averment provisions in s 98(1). He made clear that he was not otherwise satisfied beyond reasonable doubt as to service of the notice. For the reasons I have given, in my opinion the averment provision of s 98(1) was not engaged by the charge in this case.
21 That being so, the appeal must be upheld.
Conclusion
22 The parties consent to, and I would make, orders that:
(1) the application for leave to appeal on grounds 1, 3 and 4 be allowed;
(2) the appeal be allowed on grounds 1, 3 and 4; and
(Page 7)
- (3) the decision of the learned magistrate to convict the appellant on charge PE 53571 of 2011 be set aside, and there be a judgment of acquittal.
Costs
23 The appellant has been successful within the meaning of s 4(2)(a)(iv) Official Prosecutions (Accused's Costs) Act 1973 (WA) and should have a certificate for his costs: Starling v Edmunds [2012] WASC 14 (S). I fix the costs of trial at $5,852 and the costs of the appeal at $4,900.
16