McDougall v Johns
[2014] ACTSC 351
•18 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | McDougall v Johns |
Citation: | [2014] ACTSC 351 |
Hearing Date: | 14 November 2014 |
DecisionDate: | 18 December 2014 |
Before: | Penfold J |
Decision: | 1. The appeal is allowed. 2. The conviction and sentence on each of the two charges is set aside. 3. The parties will be heard about the appropriate further orders. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Judge’s Findings of Fact – appellant’s licence disqualified in Magistrates Court proceedings – leave to appeal out of time granted – appellant claimed to have delivered notice of appeal to court registry – police observed appellant driving during original licence disqualification period – appellant charged with driving while disqualified –whether delivery of notice of appeal would have stayed disqualification – whether reference to “duly instituted” appeal required notice of appeal to have been noted in court records or served on other party – conviction and sentence set aside. EVIDENCE – General – appellant charged with driving while licence disqualified despite evidence of delivering notice of appeal against Magistrates Court orders effecting disqualification – court registry had no record of receiving notice of appeal – no evidence of court registry systems or searches – whether there was evidence of notice of appeal having been delivered to court registry – absence of challenge to appellant’s evidence that notice of appeal had been delivered – conviction and sentence set aside. |
Legislation Cited: | Court Procedure Rules 2006 (ACT), rr 6121, 6122, 6122(3)(a), 6122(3)(b), div. 6.3.3, Dictionary Crimes (Sentencing) Act 2005 (ACT), s 17 Evidence Act 2011 (ACT), s 69(4) Legislation Act2001 (ACT), Dictionary Magistrates Court Act 1930 (ACT), ss 209, 209(1), 209(2), 216 Road Transport (General) Act 1999 (ACT), ss 44, 44(5), 44(6) |
Cases Cited: | Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 Browne v Dunn (1893) 6 R 67 The Queen v Hillier (2007) 228 CLR 618 |
Parties: | John McDougall (Appellant) Gregory Paul Johns (Respondent) |
Representation: | Counsel Mr M Kukulies-Smith (Appellant) Ms A Clarke (Respondent) |
| Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 10 of 2014 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Doogan Date of Decision: 18 February 2014 Case Title: John McDougall v Gregory Johns Court File Numbers: MC 160 045 |
Introduction
On 18 February 2014, John McDougall was convicted by Magistrate Doogan of two offences, being:
(a)driving while disqualified; and
(b)using an unregistered or suspended vehicle.
He was also dealt with for two other matters, but they are not raised in this appeal.
As well as being convicted, Mr McDougall was, on the drive while disqualified charge, fined $400 and disqualified from driving for two years. For the other offence, he was fined $500.
Mr McDougall has appealed against both the findings of guilt and the sentences imposed on those two charges.
The appeal proceeded on three grounds, being:
(a)first, that the Magistrate erred in taking into account evidence not properly before the court;
(b)secondly, that the Magistrate erred in making a finding contrary to unchallenged evidence, the particulars being that her Honour found that an appeal had not been lodged contrary to the evidence of the appellant, a matter never suggested to him in cross-examination; and
(c)finally, that the Magistrate erred in not proceeding pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT) (which permits the court to make a non-conviction order as part of a sentencing disposition.
In the event, I have not been required to address the third appeal ground.
Background
The first Magistrates Court matter
On 9 December 2011, Mr McDougall appeared before Magistrate Lunney and was convicted of an offence of driving while his licence was suspended. He was ordered to be of good behaviour for 12 months and, during that time, to perform 56 hours of community service. Mr McDougall performed 24 hours of community service, the last eight hours being performed on 11 February 2012. Corrective Services records no more contact with Mr McDougall after that.
It seems that at the hearing before Magistrate Lunney, Mr McDougall was also disqualified from driving for 12 months; this is recorded in a Road Transport Authority (RTA) certificate tendered in the Magistrates Court which says that Mr McDougall "was disqualified from holding or obtaining a driver licence due to an order made by the ACT Magistrates Court on 9 December 2011". Magistrate Doogan referred to the relevant bench sheet mentioning the disqualification, but that document does not appear to be before me. On the other hand, the making of such a disqualification order is not recorded in Mr McDougall's criminal history tendered before Magistrate Doogan, although that document does mention the conviction, the good behaviour order, the probation condition and the community service order made in that sentencing.
Leave to appeal out of time
On 17 February 2012, I gave Mr McDougall leave to appeal out of time against Magistrate Lunney's sentence. That leave was given in reliance on an affidavit from Mr McDougall to the effect that he had consulted a neuropsychologist shortly before his appearance in the Magistrates Court and was still awaiting a final report from the neuropsychologist. Mr McDougall understood that the report would say that he had suffered an acquired brain injury causing among other things significant damage to his memory functions; Mr McDougall believed that this was likely to provide a basis for appealing his conviction by Magistrate Lunney with a view to obtaining the making of a non-conviction order.
The second Magistrates Court matter
On 1 December 2012, Mr McDougall was driving along Antill Street in Watson when he was stopped by police. He produced an ACT driver licence in his name, and appeared surprised when police told him that his licence was disqualified. The police statement of facts says that police indices revealed that Mr McDougall's licence had been disqualified by a court for a period of 12 months from 16 December 2011 (this date appears to be incorrect having regard to the RTA certificate and the date of the Magistrates Court hearing).
Those events were the basis of the first charge dealt with by Magistrate Doogan.
In due course, it emerged that the registration of the car being driven by Mr McDougall had been suspended from 8 October 2012 due to a fine default. This was the basis of the second charge.
Early in the proceedings before Magistrate Doogan, it seems that Mr McDougall raised what were effectively two alternative, although not necessarily inconsistent, defences to the drive while disqualified charge, being:
(a)first, that he was not aware that he had been disqualified at all; and
(b)secondly, that he believed all the orders made by Magistrate Lunney (including any disqualification) had been stayed by an appeal against Magistrate Lunney's order that he had lodged in the Supreme Court.
Mr McDougall's first claim, that he did not know he had been disqualified, was clearly relevant to her Honour's determination of Mr McDougall's credibility.
Mr McDougall's belief that the disqualification had been stayed depended on his claim to have lodged his appeal against Magistrate Lunney's orders on the day when I had given him leave to appeal out of time.
To the extent that the belief that the disqualification order had been stayed was found to be incorrect, Mr McDougall claimed that he had made an honest and reasonable mistake of fact in driving on the basis that he was entitled to do so.
The evidence
Mr McDougall gave evidence before Magistrate Doogan:
(a)that having been given leave to appeal out of time from Magistrate Lunney's orders, he understood that the sentences imposed by his Honour would be stayed until the appeal could be heard;
(b)that immediately after being given leave to appeal out of time, he went to the Magistrates Court counter of the combined registry that provides support to the Supreme Court (the court registry) and lodged his notice of appeal;
(c)that an unsigned and undated document produced in court was a copy of the notice of appeal that he had handed in at the Magistrates Court counter, but that the document he handed in had been both signed and dated;
(d)that the officer behind the counter received the document and told him "that they’d be in touch with me";
(e)that he had not heard anything from the court registry in relation to his appeal;
(f)that he believed that the lodging of the notice of appeal had stayed his community service order, but that at the time the community service order was imposed, he had not understood that his licence had been disqualified at all; and
(g)that he had telephoned the community service officers to tell them that he lodged an appeal against the community service order, and that at that point he did not regard anything from the earlier proceedings as being still applicable to him.
In cross examination, Mr McDougall agreed that when he had filed his application for leave to appeal out of time, he had been given a stamped copy of the document by registry staff, but said that he didn't know that was the practice of the court registry and that he should also have received a stamped copy when he lodged the appeal itself. Mr McDougall conceded that he had not received a receipt from a registry officer, but said:
I handed [the notice of appeal] to one of the officers and they made enquiries with their colleague and they said they’d let me know, and I walked away. They didn't give me anything and no further indication.
Mr McDougall repeated this aspect of his evidence under questioning from Magistrate Doogan.
Mr McDougall's counsel noted before Magistrate Doogan that both his office and the prosecutor's office had made inquiries of the court registry but registry staff had not been able to locate Mr McDougall's notice of appeal. However, there was no evidence tendered from any person with responsibility for registry operations about what searches had been made or about registry systems and processes more generally, being evidence such as might have been provided in accordance with s 69(4) of the Evidence Act 2011 (ACT).
The psychological report about Mr McDougall, presumably the one foreshadowed on the application for leave to appeal out of time, was put before Magistrate Doogan but only at the sentence hearing.
Submissions
Submissions were made before Magistrate Doogan about whether lodging Mr McDougall's notice of appeal would in any case have stayed the disqualification, which seems to have been accepted as an automatic disqualification arising from the recording of the conviction.
The prosecutor submitted that even if Mr McDougall had in fact lodged his notice of appeal, it would not have stayed an automatic disqualification arising from the Magistrate's recording of a conviction for the offence, because it was not a "decision, conviction, order, sentence or penalty" as referred to in s 216 of the Magistrates Court Act 1930 (ACT).
However, counsel for Mr McDougall pointed out that since Mr McDougall's appeal was against the recording of a conviction, the effect of lodging the appeal was to stay the conviction, and staying the conviction must also have stayed the automatic consequences of that conviction, including the licence disqualification.
The Magistrate rejected Mr McDougall's defence, saying that apart from the evidence that Mr McDougall had been granted leave to appeal out of time, and his own claim of having lodged the notice of appeal, there was no evidence that the notice of appeal had been lodged. Her Honour accordingly did not address the consequences of an effective institution of the appeal on the licence disqualification arising from Magistrate Lunney's decision.
The appeal
I have already noted the three grounds on which the appeal proceeded. The first two appeal grounds relate to the Magistrate's finding that the appellant had been disqualified from driving at the time police observed him driving in Antill Street. Her Honour's conclusion rested on a certificate tendered by the prosecution under the Road Transport (General) Act 1999 (ACT) to the effect that Mr McDougall had been disqualified from holding or obtaining a driver licence for a period of one year from 9 December 2011 until 8 December 2012 "due to an order made by the ACT Magistrates Court on 9 December 2011", but also required her Honour's rejection of Mr McDougall's claims that he had not been aware that his licence had been disqualified and that he had appealed against the conviction recorded by Magistrate Lunney.
The appeal grounds challenge the basis on which her Honour reached her finding that Mr McDougall had knowingly driven while unlicensed, specifically by reference to her Honour's rejection of Mr McDougall's claims that he was not aware that he had been disqualified from driving by Magistrate Lunney, and that he had lodged an appeal against his sentence immediately after he had been given leave to appeal out of time.
Did Mr McDougall know that he was disqualified from driving?
Her Honour was unimpressed by the exchange recorded in the police statement of facts as follows:
The police said: "Are you aware that your driver's licence is currently disqualified?"
The defendant said: "no, I had no idea".
Her Honour rejected Mr McDougall's claim that he had not known that he was disqualified from driving, asserting:
That's not true. You had an idea because you were in court – you were in court. When Mr Lunney said, "you're disqualified from driving for 12 months," you were in court. The bench sheet that I have on the breach says that you were here. So you must have heard that. So you knew.
There are several problems with her Honour's comments.
First, it is possible that if the 12-month disqualification was an automatic one arising under legislation, Magistrate Lunney may not in fact have articulated that disqualification during his sentencing remarks. Secondly, as submitted by counsel for Mr McDougall, her Honour had no basis on which to assume that Magistrate Lunney had articulated the 12-month disqualification. The bench sheet available to her Honour may be adequate evidence of Mr McDougall's presence in the court, but her Honour did not claim that the bench sheet recorded that Magistrate referred to the disqualification in his sentencing. There was no evidence before her Honour that Mr McDougall had in fact heard Magistrate Lunney say that he was disqualified from driving for 12 months.
Did Mr McDougall appeal against Magistrate Lunney’s sentence?
The second appeal ground relates to her Honour's rejection of Mr McDougall's evidence that he had delivered his notice of appeal to the court registry shortly after having been given leave to appeal out of time.
Counsel for Mr McDougall says that her Honour repeatedly said that there was no evidence before her that the notice of appeal had been lodged, despite the fact that Mr McDougall had given sworn evidence of providing the notice of appeal to staff of the court registry on the same day on which he was granted leave to appeal out of time.
The Supreme Court bench sheet recording the grant of leave to appeal showed that the matter concluded in court at 3 pm.
It is true that there was no direct evidence from the registry of the lodging of such notice, but, as already mentioned, nor was there any positive evidence that the notice of appeal had not been received by the registry, whether provided in accordance with s 69(4) of the Evidence Act or otherwise.
If Mr McDougall in fact went straight to the registry counter within the Magistrates Court building after being granted leave to appeal, it is entirely possible:
(a)noting the record that the proceeding before me finished at 3 pm – that registry staff had not yet been advised that Mr McDougall had been granted leave to appeal out of time, and were therefore unable to stamp and seal the notice of appeal; and
(b)that such staff did not expect to receive such advice before the registry closed for that day.
It is easy to imagine that, in such circumstances, the document might have been put away until the next day and simply overlooked from then on.
Secondly, counsel for Mr McDougall says that although the prosecutor in the Magistrates Court put to Mr McDougall that he had not lodged the notice of appeal on the day on which he was given leave to appeal out of time but had lodged it some time later, it was never put to him that he had not lodged the notice of appeal at all.
Counsel says that, in accordance with the principles in Browne v Dunn (1893) 6 R 67, there should not have been a finding against Mr McDougall in relation to that part of his evidence relevant to the lodging of the notice of appeal.
I accept the appellant's submissions that her Honour should not have founded her decision on an absence of evidence that the appeal had been lodged, given that, in fact, there was evidence from Mr McDougall that he had lodged it and there was no evidence from anyone else that he had not done so. Further, the requirement of fairness expressed in Browne v Dunn is in general terms that if a witness's evidence is to be challenged, the ground of the challenge ought (if not earlier identified) to be put to the witness in cross-examination. I agree that this principle seems to be relevant in this case.
The consequences of a failure to provide that fairness in the case of questions not asked of an accused person seems to be that the prosecution may not be able to rely on its version of the relevant facts (McMinn v Daire (1982) 5 A Crim R 307 at 312-313; R v Morrison (2002) 136 A Crim R 222 at 233-234); The Queen v Hillier (2007) 228 CLR 618 at 648; [65]; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 15, 16, 22).
Submissions to the effect that Mr McDougall's evidence of lodging his appeal had not been challenged were made to Magistrate Doogan, but were effectively rejected by her Honour, who repeated that there was no evidence that the appeal had been “duly instituted”. Clearly, her Honour took the view that due institution of the appeal could only be proved by Supreme Court records to that effect. While there is no doubt that this would have been the most satisfactory evidence of Mr McDougall's claim, I can see no basis for the assumption that this is the only acceptable evidence for such a claim, especially when there is no contradictory evidence.
Her Honour's decision, and particularly her rejection of Mr McDougall's claim to have lodged an appeal, appear to have been substantially based on her view that Mr McDougall was not a credible witness, a matter to which her Honour returned on several occasions throughout her reasons for decision.
Immediately after the comments by her Honour at [29] above, Magistrate Doogan said:
For you to lodge an appeal, you knew that what you were appealing. You are appealing the conviction or rather the community service order and also the fact that you were convicted and disqualified. So to say: "I have no idea" is a lie, Sir. That's a lie. So I can't believe you. In the face of this, I can't believe you when you say that you actually went and lodged a document. As I say, there is no evidence whatsoever that an appeal has been duly – you might have had every thought about lodging at some stage but you never did because there is no record of it.
The fact that you made no effort whatsoever to try to make inquiries, – you can't just go ahead blasé driving for years and years, and years thinking, "when will this appeal ever come up?" That's not credible ... information.
Again, her Honour's comments were not based on the evidence that was before her. None of Mr McDougall's application for leave to appeal out of time, his affidavit accompanying that application, and the unsigned and undated version of the notice of appeal referred to any licence disqualification, although there were references in those documents to the orders made by the Magistrate, to Mr McDougall's conviction, to a good behaviour order and to the community service order.
It is also clear that her Honour was particularly unimpressed by Mr McDougall's failure to pursue the progress of the appeal that he claimed to have lodged. However, she seems to have taken a view of that failure that was certainly exaggerated as to the facts and perhaps unduly strict as to the reasonableness of Mr McDougall's approach to the appeal. I note in particular that Mr McDougall was stopped by police less than 10 months after he was given leave to appeal, so her Honour's reference to him continuing to drive "for years and years and years" while wondering whether his appeal would ever come up was a considerable exaggeration.
Thus, it appears that while her Honour's conclusion that no appeal had been instituted was based partly on her Honour's assessment of the appellant's credibility, that assessment appears to have been significantly influenced, or perhaps even generated, by her Honour's view that Mr McDougall was lying about not knowing that he was disqualified, and about having delivered the document to the court registry. Those views in turn seem to have been based on her Honour's assumption that Magistrate Lunney would have told Mr McDougall that he was disqualified from driving for 12 months, on the absence of evidence before her Honour that the registry had ever received the document, and on the appellant's failure to pursue the appeal. I note that her Honour gave no indication of anything in Mr McDougall's demeanour or in the way he gave evidence that would explain her remark, made in the course of counsel's submissions on Mr McDougall's behalf, that "[Mr McDougall's] credibility is in issue as well, can I say, right from the start."
Consequences of Mr McDougall having delivered the notice of appeal
It is next necessary to consider what would have been the implications of accepting the appellant's evidence of handing a signed and dated notice of appeal document to an officer of the court registry.
Two questions seem to arise.
The first is the significance of any belief held by the appellant that he had, by delivering that document to the court registry, stayed the consequences of his conviction by Magistrate Lunney. Specifically, could that belief relieve him from criminal liability for driving during the relevant period?
Honest and reasonable mistake of fact
Counsel for Mr McDougall says that whatever the real effect of his delivery of the notice of appeal to the court registry, he believed having made that delivery that the orders made by Magistrate Lunney, including any license disqualification, had been stayed and that therefore there was no obstacle to him driving. That is, he relies on “honest and reasonable mistake of fact” as his defence to the charge.
The the respondent says that any mistake under which the appellant was acting was not a mistake of fact but a mistake of law. Despite repeated invitations from me, counsel for Mr McDougall was not able to articulate the mistake said to have been made by the Mr McDougall in such a way as to identify it as a mistake of fact.
I cannot see that there was any fact about which the appellant was mistaken. There is no suggestion that he had made a mistake about whether he had delivered his notice of appeal to the court registry. If his evidence about delivering the document to the court registry was accurate, then his only possible mistake was about the legal impact of what he had done. If a mistaken belief on Mr McDougall's part played any role in his offending, it must have been a mistaken belief that what he had done at law had resulted in a stay of the Magistrates Court sentence and, in particular, his license disqualification (if in fact such a belief would have been mistaken). That is, if Mr McDougall was simply wrong about the legal effect of delivering his notice of appeal to the court registry, this would not provide a defence to either charge to which this appeal relates.
Effect of delivering the notice of appeal as claimed
The second question is whether, if Mr McDougall had in fact delivered that document to the court registry, it would have operated to stay any or all of Mr McDougall's conviction and the consequences.
First, it is necessary to consider whether the actions described by Mr McDougall amounted under the Magistrates Court Act to filing a notice of appeal so as to invoke s 216 of that Act.
Sections 209 and 216 of the Magistrates Court Act at the time I gave Mr McDougall leave to appeal out of time were relevantly as follows:
209Institution of appeal
(1)An appeal must be instituted by the appellant filing a notice of appeal in the office of the registrar of the Supreme Court within the period of 28 days after the conviction was entered, the order or decision was made or the sentence or penalty imposed, or within any further time the Supreme Court allows.
(2)As soon as practicable after instituting the appeal, the appellant must—
(a)file a copy of the notice of appeal with the Magistrates Court; and
(b)serve a copy of the notice of appeal on—
(i)for an appeal mentioned in section 208 (1) (a)—each other person mentioned in that paragraph; and
(ii)for any other appeal—the director of public prosecutions.
216Stay of execution pending appeal in certain cases
(1)If an appeal to which this division applies has been duly instituted, the enforcement or execution of the decision, conviction, order, sentence or penalty appealed from is stayed until the appeal is concluded or is abandoned or discontinued and, if the appellant is in custody, the appellant may, if not detained for any other cause, be granted bail in accordance with the Bail Act 1992.
Section 216 at the relevant time required a “duly instituted” appeal as the trigger for staying the matters listed in that section.
The respondent argued that this requires an appellant not only to have filed a notice of appeal as described in s 209(1), but also to have served the notice of appeal on the Magistrates Court and the respondent as required by s 209(2). I reject this submission. Section 209(2) says that the notice of appeal must be served "As soon as practicable after instituting the appeal" (emphasis added). There is no basis for interpreting this requirement as a pre-requisite for the effective institution of the appeal. I cannot see that a duly instituted appeal requires more than that the appeal has been filed in accordance with s 209(1).
There is no definition of “file” in the Magistrates Court Act.
The Legislation Act2001 (ACT) definition of "file" (Pt 1 of the Dictionary to the Legislation Act), is:
file includes lodge.
The Dictionary to the Court Procedures Rules 2006 (ACT) contains a definition that is relevantly as follows:
filed—a document is filed in the court if—
(a)the document is lodged at the registry for filing by the court;
Rule 6121 of the Court Procedures Rules is relevantly as follows:
A document may be filed in the court by—
(a) delivering it to the registry personally; ...
There does not appear to be any definition of "lodge" in the Magistrates Court Act, the Legislation Act or the Court Procedures Rules.
Rule 6122 provides that after a document has been “filed in the court by personal delivery to the registry”, the registrar may either record that filing or reject the document under division 6.3.3. That division provides various grounds on which documents may be rejected, and provides that a document that is rejected must be returned to the person who filed the document.
The practice that appears to be applied in the court registry of first stamping documents “lodged” and then stamping them “filed” after it is determined that no requisitions will be issued, or after requisitions have been answered satisfactorily, presumably relies on the interpretation that stamping a document “lodged” records that the document has been “filed in accordance with rule 6121”, while stamping the document “filed” records the filing as permitted by rule 6122(3)(a) and, by implication, records that the document has not been rejected as permitted by rule 6122(3)(b).
Thus, Mr McDougall's evidence of handing his notice of appeal to an officer in the court registry seems to describe “delivering it to the registry personally”, as specified in rule 6121, which in turn constitutes filing it under that rule.
Accordingly, I find that under s 216 of the Magistrates Court Act, that filing, in turn, would have stayed the “enforcement or execution of the decision, conviction, order, sentence or penalty” appealed against.
There is then a further question whether that stay would have included Mr McDougall's 12-month disqualification from driving.
Counsel for Mr McDougall, in submissions before Magistrate Doogan, said that the licence disqualification was an automatic consequence of the recording of the conviction, but without identifying the relevant legislative provisions.
As already noted, none of Mr McDougall's three documents, being the application for leave to appeal out of time, the accompanying affidavit and the draft notice of appeal, referred to an appeal against the licence disqualification.
However, if Mr McDougall's appeal was either an appeal against conviction or an appeal against all the orders made against Magistrate Lunney, I can as presently advised see no basis for rejecting counsel's argument that the disqualification would have been stayed either directly by s 216 if it were a disqualification ordered by Magistrate Lunney or indirectly by virtue of the staying of the conviction if the disqualification were an automatic consequence of the conviction.
However, in the absence of information about the source of that licence disqualification, and in the absence of any argument about the scope of any appeal lodged by Mr McDougall or about the operation of the relevant licence disqualification provisions, I am not willing to express any conclusion about this question.
The second charge – driving vehicle with suspended registration
The second charge dealt with by Magistrate Doogan related to driving a vehicle with suspended registration. In the Magistrates Court, counsel for Mr McDougall submitted:
(a)that s 44 of the Road Transport (General) Act established a hierarchy of sanctions for fine defaulters, starting with licence suspension under s 44(5);
(b)that the registration suspension was imposed by the RTA because its records showed that Mr McDougall did not have a licence that could be suspended, and that under s 44 of the Road Transport (General) Act, the next available sanction was suspension of Mr McDougall's vehicle's registration under s 44(6);
(c)that if Mr McDougall had effectively appealed against his licence disqualification then he did at the relevant point still have his licence and therefore, under s 44(6), the RTA had no power to suspend his vehicle registration; and
(d)therefore, if Mr McDougall's argument in relation to the drive while disqualified charge is successful, the challenge to the drive suspended vehicle charge must also succeed.
Conclusions
I have found that her Honour erred in her approach to Mr McDougall's evidence and to the other material before her about whether Mr McDougall had delivered his notice of appeal to the court registry. Her finding that the notice of appeal had not been delivered was crucial to her conclusion that Mr McDougall had at the relevant time been disqualified from driving.
The next question is what orders would be appropriate now that I have reached that conclusion.
Counsel for Mr McDougall submitted that:
(a)a finding that her Honour had erred in relation to the first appeal ground (relating to her Honour's assumption about what had happened before Magistrate Lunney) would require the matter to be committed to the Magistrates Court for a re-hearing; but
(b)a finding in favour of Mr McDougall on the appeal ground relating to evidence of the lodging of an appeal document would justify an acquittal.
I am not convinced that the options are quite so clear, especially having regard to the appellant's abandonment of the second appeal ground, namely that the finding of guilt was unsafe and unsatisfactory.
Accordingly, I propose to allow the appeal, and set aside the conviction and sentence on the two charges, but I shall hear the parties about the appropriate further orders.
| I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: |
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