MESSNER v Police - [2008] SASC 140

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MESSNER v POLICE
[2008] SASC 140
Judgment of The Honourable Justice Kelly
23 May 2008
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
Appellant pleaded guilty in the Kadina Magistrates Court to charges of driving whilst disqualified and driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol - magistrate imposed court and prosecution fees and Victims of Crime Levy, but did not impose a conviction or fine - appellant appealed on basis that he was not validly disqualified at time of the offence and therefore could not be found guilty at law.
Held: the appellant's licence disqualification was lifted by the Department of Transport subsequent to date of offences, but at the time of the offences the disqualification was still in place - the order was properly made and was valid until lifted or set aside - appellant's complaints are without substance - appeal dismissed.
Road Traffic Act 1961 ss 47A and 47B(5); Motor Vehicles Act 1959 s 91; Expiation of Offences Act 1996 ss 13 and 14; Australian Road Rules rr 264 and 267, referred to.
Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342; Pelechowski v Registrar, Court of Appeal (NSW) [1999] 198 CLR 435, applied.

MESSNER v POLICE
[2008] SASC 140
KELLY J
Introduction

On 15 October 2007 in the Kadina Magistrates Court the appellant pleaded guilty to one count of driving while disqualified contrary to Section 91 of the Motor Vehicles Act 1959 and one count of driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol contrary to Section 47A of the Road Traffic Act 1961.
The learned magistrate, in the exercise of his discretion, imposed no conviction or fine. He simply imposed court and prosecution fees and the Victims of Crime Levy. He reduced to zero the demerit points applicable to both offences.
The appellant appealed the “whole order” made by the magistrate, by which I infer he has appealed against both conviction and sentence. On 11 February 2008 counsel for the respondent on this appeal, informed the court that an expiation notice as required, was not issued for the offence contrary to Section 47B(5) of the Road Traffic Act and the respondent therefore accepted that the charge should not have proceeded in the manner which it did. For that reason, the appeal in respect of count two was conceded.
However, the appellant maintains that, notwithstanding his plea of guilty, the conviction in relation to the first charge of driving whilst disqualified should be quashed on the basis that he was not validly disqualified at the time of the alleged offence. In essence he has submitted that he therefore could not be found guilty of the offence at law.
Background
The history of this matter is set out in the affidavit of Michael Newton sworn on 23 January 2008 and two affidavits of William Kierns sworn on 8 February 2008 and 28 March 2008 respectively.
It is necessary to understand the chronology of the appellant’s recent traffic history in order to understand the basis of the appellant’s argument that he was not validly disqualified on 10 June 2007. On that date the appellant was stopped by police while driving his motor vehicle at Wallaroo and charged with the offence of driving whilst disqualified.
Between September 2004 and December 2007 the appellant incurred seventeen expiation notices issued under the provisions of the Expiation of Offences Act 1996.
On 2 October 2006 the appellant was charged with the offence of failing to wear a seatbelt properly adjusted and fastened contrary to Rule 264 of the Australian Road Rules and was issued with an expiation notice number D5620450A. Consequently he incurred a loss of three demerit points.
On 12 December 2006 the appellant contacted the Expiation Notice Branch (“ENB”) in respect of that expiation notice number D5620450A seeking to have the notice revoked.
On 19 December 2006 the appellant was charged again with failing to wear a seatbelt properly fastened and issued a further expiation notice numbered D5821998A. The issue of that expiation notice caused the appellant to incur a further loss of three demerit points.
Between 6 January 2007 and 2 February 2007 the appellant committed a further three expiable offences and incurred further demerit points. As a result of that further offending an administrative licence disqualification for three months was imposed by the Department of Transport to commence on 16 May 2007.
The appellant has never conceded that the notice of disqualification was served on him, however it appears from a certificate filed on the hearing of this appeal, and it was accepted by the appellant’s counsel for the purpose of the hearing in the Kadina Magistrates Court, that a letter was forwarded to the appellant at an address at 13 Paringa Avenue, Somerton Park on 18 April 2007, advising him of his licence disqualification from the period commencing 16 May 2007 for three calendar months.
On 26 May 2007 the appellant was again stopped by police who advised him of the details of his licence disqualification for the period 16 May 2007 to 15 August 2007. On that occasion the appellant maintained that he did not know that he was disqualified but he was nevertheless informed by the police on that day. Later, for the purposes of the Kadina Magistrates Court hearing, the appellant accepted that he had been spoken to by the police on 26 May 2007 and advised of the licence disqualification.
On 10 June 2007 the appellant was stopped by police at Kadina and submitted to an alcotest which returned a positive result. He was issued with an immediate notice of loss of licence. Later, the results of a blood analysis showed that the appellant had not less than .027 grams of alcohol per 100 millilitres of blood. (However, that charge is not now relevant.)
On 9 July 2007 the appellant first contacted the ENB in relation to expiation notice number D5821998A which related to the offence of fail to wear a seatbelt, committed on 19 December 2006. On that date the ENB received a telephone call from the appellant who said that he had a doctor’s certificate to justify why he was not wearing a seatbelt. During that telephone call he was advised to send a letter to the manager at the branch with the doctor’s certificate within 10 days.
On 18 July 2007 in response to the appellant’s submissions to the ENB, the branch amended both expiation notices number D5620450A (in respect of the offence of failing to wear a seatbelt committed on 2 October 2006) and D5821998A (in respect of the offence of failing to wear a seatbelt committed on 19 December 2006) to a warning, thereby cancelling the imposition of six demerit points.
When an expiation notice is amended to a caution by the ENB, the branch notifies the Department of Transport, which is then responsible for amending the person’s demerit points history. The Department cannot remove demerit points from a person’s history until it has been notified by the ENB of the outcome of the applications in respect of the expiation notices.
On 4 September 2007 the disqualification issued by the police on 10 June 2007 was cancelled, the police having accepted the appellant’s explanation that he had a valid medical defence to the charge of failing to comply with a breath analysis test on that day. By that date the appellant had served nearly three months of the licence disqualification imposed.
Between August and October of 2007 there were numerous communications between the appellant’s then solicitor Mr Ivan Margatich and the police prosecutor handling the charges in the Kadina Magistrate’s Court.
By letter, the appellant’s solicitor confirmed that the appellant would enter a plea of guilty to both the charges of driving whilst disqualified and the charge, at that stage, for failing to comply with a breath analysis test.
Although the appellant was unrepresented at the date the plea was entered on 15 October 2007 he was present at the time when submissions were made to the magistrate.
When sentencing, the magistrate noted the history, and commented:
Considerable discussion ensued in relation to the penalty to be imposed in relation to the two counts to which the defendant agreed to plead guilty to and it was eventually agreed by all parties that the fairest way to proceed in the matter – because the defendant had served a period of disqualification of file MCKAD-07-595 (which charges prosecution had now withdrawn) was to impose no further penalty on the defendant in relation to the charges in question.
It was therefore agreed that the two charges to which he had pleaded guilty to would be dismissed without further penalty. And that in addition to that, by consent, the demerit points applicable to both charges under the Motor Vehicles Act were reduced to zero. The defendant was charged only the court fees, levy and the prosecution costs in relation to both charges.
Handwritten notes contained in a facsimile from Mr Margatich to the police prosecutor on 12 October 2007 confirm the appellant’s instructions to enter pleas of guilty to both charges on 15 October 2007.
Extension of Time
The appellant did not file a notice of appeal in this matter until 28 November 2007. He therefore requires an extension of time within which to appeal. The respondent did not object to permission being granted to the appellant to bring this appeal out of time and in light of the fact that the appellant is unrepresented, I consider that an extension should be granted. I will therefore deal with his appeal on its merits.
Analysis
It is for the appellant to establish that there is a proper reason for setting aside the conviction.
To succeed, the appellant needs to demonstrate either that he did not appreciate the nature of the charge, or did not intend to admit that he was guilty or, upon the admitted facts he could not in law have been convicted of the offence charged.
In my view, given that the appellant was present at the Kadina Magistrates Court on 15 October 2007 when the police prosecutor outlined the history of the matter, and in light of his counsel’s communications with the police prosecutor and the court prior to that date, I am satisfied that the appellant appreciated the nature of the charge and entered his plea with full knowledge of the factual issues upon which the police relied.
Furthermore, it is plain from the affidavit filed by the prosecutor, that on that date the prosecution outlined the facts and history of the matter including the claims made by the appellant, that he was not disqualified at the relevant time. The prosecutor made submissions that there was a valid disqualification order operative at the time.
The endorsement on the magistrate’s court file notes that the facts alleged were admitted and the guilty plea was entered on that day.
Rule 267 of the Australian Road Rules provides the procedure for a person who wishes to claim exemption from wearing a seatbelt. R 267 relevantly states:
267—Exemptions from wearing seatbelts
…
(3) A person is exempt from wearing a seatbelt if:
(a)the person (or, for a passenger, the driver of the vehicle in which the person is a passenger) is carrying a certificate, issued under another law of this jurisdiction, stating that the person is not required to wear a seatbelt; and
(b)the person is complying with the conditions (if any) stated in the certificate.
(4) However, a person is not exempt under subrule (3) from wearing a seatbelt if the person (or, for a passenger, the driver of the vehicle in which the person is a passenger) does not immediately produce the certificate mentioned in the subrule for inspection when a police officer or authorised person asks the person (or the driver) whether the person is exempt from wearing a seatbelt.
…
The respondent accepts that after the date on which the appellant was charged, on 19 December 2006, the appellant later produced a letter from his general medical practitioner as a result of which the ENB subsequently reviewed the matter and downgraded the expiation notice in respect of that offence, to a caution only. The ENB also downgraded the expiation notice issued on 2 October 2006 for the same reason.
Although the appellant did not comply with the relevant Australian Road Rules in claiming exemptions, it appears that the ENB was prepared to accede to his request to reconsider the matter on the basis of the medical certificates provided ex post facto.
Nevertheless, on 10 June 2007 when the appellant was stopped while driving at Kadina, there was in existence a valid notice of disqualification of licence from 16 May 2007 to 15 August 2007. The extract from the Motor Vehicles Register tendered upon the hearing of this appeal confirms that fact.
The fact that the appellant’s demerit points were reinstated and the licence disqualification lifted by the Department of Transport on 18 July 2007, does not mean that the appellant can now claim to have been validly licensed on 10 June 2007. There is no suggestion that the order for disqualification was improperly made. The order was therefore good until lifted or set aside. While it existed it had to be obeyed. See Attorney-General for NSW v Mayas Pty Ltd (1988) 14 NSWLR 342 per McHugh J at 357 cited with approval in Pelechowski v Registrar, Court of Appeal (NSW) [1999] 198 CLR 435 per Gaudron, Gummow and Callinan JJ at 445.
The magistrate correctly noted that the offending by the appellant on 10 June 2007, against the background of the events which unfolded both before and after 10 June 2007, might be viewed as a technical breach of s 91 of the Motor Vehicles Act. In those circumstances his Honour, in the exercise of his discretion, determined to impose no conviction or fine. Furthermore, in the exercise of his discretion, he reduced to zero the demerit points applicable to both the offences for which the appellant then stood to be sentenced.
The Australian Road Rules prescribes the circumstances in which a person can legitimately claim exemption from having to wear a seatbelt. The appellant did not comply with those rules. However, he was successful later, in persuading the ENB to downgrade two offences committed in October and December of 2006, by producing a letter from his doctor after the event.
Furthermore, the appellant chose to instruct his solicitor to enter a plea of guilty to the charge of driving whilst disqualified, in the full knowledge of the ongoing dispute that he was having with the police and the ENB about these matters. The magistrate heard all of the relevant circumstances and in light of those circumstances, determined to impose no conviction and no fine.
For these reasons I consider the appellant’s complaints in this court to be without any substance. The appeal is dismissed.