Morcom v Police - [2018] SASC 135

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MORCOM v POLICE
[2018] SASC 135
Judgment of The Honourable Justice Hinton
14 November 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
Appeal against conviction.
The appellant was convicted of driving on 28 February 2015 with a prescribed drug in his oral fluid or blood contrary to s 47BA(1)(a) of the Road Traffic Act 1961 (SA).
The appellant appealed against his conviction on the basis that the Magistrate erred in finding that the prosecution had established the necessary preconditions under s 47BA(6) which prohibit the prosecution of a person aged 16 years or older for the offence of drug driving where it is the first time the person is alleged to have committed such offence unless and until the person has been given an expiation notice for the offence and the opportunity to expiate the offence under the Expiation of Offences Act 1996 (SA). The appellant did not receive an expiation notice for the offence for which he was convicted.
As proof of compliance of the preconditions in s 47BA(6) the prosecutor relied upon a certified extract from the Register of Drivers’ Licences (exhibit P12), tendered pursuant to s 140(1) of the Motor Vehicles Act 1959 (SA), which detailed two prior drug offences for which the appellant had received demerit points. In contention was whether exhibit P12 was sufficient to establish the preconditions in s 47BA(6).
Held, dismissing the appeal; the 28 February 2015 offence was not a first offence within the meaning of s 47BA(6) and the prosecution was competent. There being no evidence to the contrary, exhibit P12 provided sufficient proof of the preconditions referred to in s 47BA(6).
Criminal Procedure Act 1921 (SA) s 56; Evidence Act 1929 (SA) ss 35, 53; Expiation of Offences Act 1996 (SA) ss 4, 5, 9, 13; Motor Vehicles Act 1959 (SA) ss 7, 73, 74, 81D, 98, 98B, 98BC, 98BE, 140; Motor Vehicles Regulations 2010 (SA) reg 67, sch 4; Road Traffic Act 1961 (SA) s 47BA; Road Traffic (Miscellaneous) Regulations 2014 (SA) sch 4, referred to.
Thompson v The Queen (1989) 169 CLR 1, considered.

MORCOM v POLICE
[2018] SASC 135
Magistrates Appeal
HINTON J:
Introduction

On 13 September 2018 the appellant, Gregory Morcom, was convicted of driving with a prescribed drug in his oral fluid or blood (drug driving).[1] He now appeals against that conviction. He contends that the prosecution was incompetent for want of compliance with s 47BA(6) of the Road Traffic Act 1961 (SA) (RTA). That section prohibits the prosecution of a person aged 16 years or older for the offence of drug driving where it is the first time that person is alleged to have committed such offence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Morcom v Police

Details

AGLC: Morcom v Police [2018] SASC 135
Case: [2018] SASC 135
Decision Date: 14 November 2018

CaseChat Overview and Summary

In the Supreme Court of South Australia, Morcom appealed against a conviction for driving under the influence of intoxicating liquor or a drug. The appeal centred on the admissibility of a driver licence extract under s 140(1) of the Motor Vehicle Act 1959 (MVA). The key issue was whether the Magistrates Court erred in admitting the extract as evidence of the appellant’s prior drug driving offences, which were not listed on the document but were known to have been expiated before the trial. The appeal hinged on whether the document's admissibility under s 140(1) MVA was sufficient to establish the prior offences without requiring further proof.

The court examined whether the document, P12, met the criteria of s 140(1) MVA, which allows documents purporting to be extracts from the register of drivers’ licences to be admissible as evidence. The document was titled "Driver Licence Extract: Summary of Offences and Disqualifications Recorded in the Register of Drivers’ Licences" and included a certification statement that it was a true and correct extract. The court concluded that the document met the statutory requirements and was admissible. The court also noted that while s 140(1) provided a presumption of accuracy, it did not compel the court to admit the document. The court found that the Magistrate was correct in admitting the document and that the appellant’s objection was without merit.

The court dismissed the appeal, finding that the Magistrate correctly admitted the driver licence extract under s 140(1) MVA. The court held that the document sufficiently proved the prior offences, even though they were expiated before the issuance of the extract. The ratio of the decision emphasised that s 140(1) MVA provides a sufficient basis for admitting documents that purport to be extracts from the register of drivers’ licences. The court concluded that the Magistrate did not err in admitting the evidence and that the appeal was without merit.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The starting point is s 140(1) MVA. It provides:140—Evidence of registers (1)A document purporting to be an extract from, or copy of, an entry contained in any register kept pursuant to this Act and purporting to be certified as such an extract or copy by the Registrar is, in all legal proceedings and arbitrations, admissible as evidence, and is, in the absence of proof to the contrary, proof of the matters stated without the production of any register, licence, notice or other document upon which any entry may be founded. Self-evidently s 140(1) is an aid to proof that in legal proceedings operates as an exception to the rule against hearsay. Further, a document falling within the terms of s 140(1) may be tendered and received without the necessity of it being authenticated by a witness. To be admissible a document tendered under s 140(1) must answer the description of a “document purporting to be an extract from, or copy of, an entry contained in any register kept pursuant” to the MVA, and, purport “to be certified as such an extract or copy by the Registrar”. With respect to the first of these criteria, under s 73(1) MVA the Registrar, whose office is created by s 7 MVA, is required to “keep a register of the names and addresses of all licensed drivers, and of all endorsements on, and renewals, suspensions and cancellations of, licences.” Under s 73(2) MVA the register kept in accordance with s 73(1) is also to contain “such other information as the Registrar thinks necessary for the administration” of the MVA “in a form determined by the Registrar”. Exhibit P12 is entitled, “Driver Licence Extract: Summary of Offences and Disqualifications Recorded in the Register of Drivers’ Licences”. In my view it purports to be an extract from the register kept by the Registrar in the discharge of his or her obligations under s 73(1) MVA. With respect to the second criteria, I note that on the third and final page of P12 at the conclusion of the text it is stated that the content of the document is “[c]ertified to be a true and correct extract from the register of Drivers’ Licences”. Beneath this statement there then appears the date, 11 June 2015, and to the right of the date, purportedly, the electronic signature of the Registrar of Motor Vehicles. In my view, P12 answers the statutory description contained in s 140(1). The fact that s 140(1) renders a document to which it applies admissible does not mean that it must be admitted. Whether or not a document to which s 140(1) applies is admitted in legal proceedings is a matter for the court. Clearly objection to the admission of a document tendered under s 140(1) could not succeed on the grounds that it is to be used for a hearsay purpose or that it has not been authenticated by the Registrar, but such objections aside a court is not obliged by s 140(1) to receive the document. Assuming the facts purportedly proven by the document relevant it should ordinarily be admitted, although, discretionary exclusion remains a possibility.

Decision

Reasons for decision

In the case of both the first two entries in table one and the first entry in table two, the date upon which the drug driving offences were expiated is not known. In each instance, however, it occurred before the issue of the extract on 11 June 2015 and thus well before the appellant’s trial commenced and his objection to the competence of the prosecution was taken. Conclusion In my view the Magistrate was right to conclude that the preconditions contained in s 47BA(6) were established by the prosecution. Those preconditions did not need to be established beyond reasonable doubt but such error on the part of the Magistrate does not assist the appellant. Nor does the Magistrate’s resort to the prosecutor’s explanation of the “Alcohol and Drug Indicator”. Lastly there was no need on the part of the Magistrate to invoke the business document exceptions contained in the Evidence Act 1929 (SA). Section 140(1) MVA provided sufficient basis to admit exhibit P12. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

In elaborating upon her submissions counsel for the respondent referred in particular to ss 81D and 98BC MVA. As at September – October 2014 s 81D MVA provided for the disqualification of a person from holding or obtaining a licence if the person expiated an offence under s 47BA(1). Referring to the first entry in the second table, counsel submitted that the recorded disqualification under s 81D proved the fact that the appellant expiated the drug driving offence there mentioned. Alternately, under s 98BC, the demerit points attributed to the offences of 26/10/2014 and 19/09/2014 could only have been imposed if the appellant was convicted of those offences or those offences were expiated. Consideration The starting point is s 140(1) MVA. It provides:140—Evidence of registers (1)A document purporting to be an extract from, or copy of, an entry contained in any register kept pursuant to this Act and purporting to be certified as such an extract or copy by the Registrar is, in all legal proceedings and arbitrations, admissible as evidence, and is, in the absence of proof to the contrary, proof of the matters stated without the production of any register, licence, notice or other document upon which any entry may be founded. Self-evidently s 140(1) is an aid to proof that in legal proceedings operates as an exception to the rule against hearsay. Further, a document falling within the terms of s 140(1) may be tendered and received without the necessity of it being authenticated by a witness. To be admissible a document tendered under s 140(1) must answer the description of a “document purporting to be an extract from, or copy of, an entry contained in any register kept pursuant” to the MVA, and, purport “to be certified as such an extract or copy by the Registrar”. With respect to the first of these criteria, under s 73(1) MVA the Registrar, whose office is created by s 7 MVA, is required to “keep a register of the names and addresses of all licensed drivers, and of all endorsements on, and renewals, suspensions and cancellations of, licences.” Under s 73(2) MVA the register kept in accordance with s 73(1) is also to contain “such other information as the Registrar thinks necessary for the administration” of the MVA “in a form determined by the Registrar”. Exhibit P12 is entitled, “Driver Licence Extract: Summary of Offences and Disqualifications Recorded in the Register of Drivers’ Licences”. In my view it purports to be an extract from the register kept by the Registrar in the discharge of his or her obligations under s 73(1) MVA. With respect to the second criteria, I note that on the third and final page of P12 at the conclusion of the text it is stated that the content of the document is “[c]ertified to be a true and correct extract from the register of Drivers’ Licences”. Beneath this statement there then appears the date, 11 June 2015, and to the right of the date, purportedly, the electronic signature of the Registrar of Motor Vehicles.