Morcom v Police
[2018] SASC 135
•14 November 2018
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 135Magistrates 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 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 Expiation Act). The appellant was not given an expiation notice for the drug driving offence of which he was convicted on 13 September 2018. He contends that under s 47BA(6) it was for the prosecution to establish that he had previously been convicted of a relevant drug driving offence or had previously expiated such offence before he could be prosecuted for the offence of which he was convicted. At his trial the prosecution undertook to do so, relying upon an extract from the Register of Drivers’ Licences detailing two prior drug driving offences for which the appellant received demerit points for the purpose of satisfying the preconditions contained in s 47BA(6). The presiding Magistrate considered the extract sufficient to establish those preconditions. The appellant now challenges this conclusion. I would dismiss the appeal. My reasons follow.
[1] Contrary to s 47BA(1)(a) of the Road Traffic Act 1961 (SA).
Background
On 28 February 2015 police officers Yan and Blackburn were on mobile patrol in the Ottoway area. At about 1.35 pm they stopped the appellant as he was driving his white Holden Commodore along Bower Road. The officers approached the vehicle. Constable Yan directed the appellant, who was driving and was the sole occupant of the vehicle, to submit to an alcotest in addition to requesting that he provide the officers with his driver’s licence. The appellant complied in each respect. The alcotest returned a negative result. A check of the licence provided, being licence UXXXXX , revealed that it had expired on 4 December 2014. The licence was also said to display an “Alcohol and Drug Indicator”.
Subsequently Senior Constable Blackburn directed the appellant to submit to a drug test. He did so. The test returned a positive result with the consequence that the appellant was directed to attend at the Port Adelaide Police Station for the purpose of furnishing a sample of his oral fluid for analysis. Again, the appellant complied. The sample was forwarded to Forensic Science SA for analysis. That analysis confirmed that the appellant’s oral fluid contained methylamphetamine.
On 26 March 2015 the South Australia Police filed a Complaint in the Magistrates Court charging the appellant with two offences, driving without authorisation, contrary to s 74(1) of the Motor Vehicles Act 1959 (SA) (MVA), and drug driving, contrary to s 47BA(1)(a) RTA. Nothing more needs to be said regarding the first charge. The matter proceeded to trial on the second charge.
The proceedings in the Magistrates Court
As touched upon s 47BA(6) RTA operates to prohibit the prosecution of an offence committed contrary to s 47BA(1) RTA unless the preconditions referred to in s 47BA(6) have occurred. Absent compliance with s 47BA(6) there can be no trial. In the present case no-one involved in the trial appeared to understand the operative effect of s 47BA(6), despite the appellant having raised the issue at a pre-trial conference. The transcript indicates that the appellant was arraigned and entered a plea of not guilty. The prosecutor then opened and, by consent, tendered a series of documents which in combination were said to prove the charge. The prosecutor then closed the prosecution case.
The Magistrate proceeded to make a finding that there was a case to answer. When advised that it was conceded that the offending was made out the Magistrate responded by indicating that he would proceed to make a finding of guilt. Counsel for the appellant protested referring to what he described as “the procedural issue” and the necessity that the prosecution prove the prior commission by the appellant of an offence contrary to s 47BA(1). Debate then ensued regarding how the matter had proceeded. It became clear that counsel for the appellant and the prosecutor were operating on the understanding that proof of compliance with the preconditions contained in s 47BA(6) was to be undertaken as part of the prosecution case in the trial of the charge. Consequently the prosecutor was aware that the issue would be raised and was prepared to deal with it. In this connection he indicated to the Magistrate that he relied upon exhibit P12, the certified extract from the Register of Drivers’ Licences to which reference has already been made, as providing sufficient proof of the preconditions referred to in s 47BA(6). Later in these reasons it will be necessary to deal with exhibit P12 in detail. In the submissions that followed the prosecutor and counsel for the appellant focussed on the inferences that could be drawn from P12. In the light of questioning from the Magistrate the prosecutor applied to re-open the prosecution case and to adjourn further consideration of the matter in order that he might call further evidence on the issue. That application was refused. Submissions were then completed before the Magistrate reserved judgment on the question of whether s 47BA(6) had been complied with and, if so, whether the guilt of the appellant had been proven.
Section 47BA(6) and Exhibit P12
It is necessary to start with s 47BA(1) RTA. It creates the offence which, for convenience, I have labelled drug driving but which the RTA entitles, “Driving with prescribed drug in oral fluid or blood”. It provides:
(1) A person must not—
(a)drive a motor vehicle; or
(b)attempt to put a motor vehicle in motion,
while a prescribed drug is present in his or her oral fluid or blood.
Penalty:
(a)for a first offence—a fine of not less than $900 and not more than $1 300;
(b)for a second offence—a fine of not less than $1 100 and not more than $1 600;
(c)for a third or subsequent offence—a fine of not less than $1 500 and not more than $2 200.
Under s 5 of the Expiation Act and sch 4 of the Road Traffic (Miscellaneous) Regulations 2014 (SA) the offence created by s 47BA(1) was expiable.
Section 47BA(6) provides:
(6) If a person aged 16 years or more is alleged to have committed an offence against this section that is a first offence, the person cannot be prosecuted for that offence unless he or she has been given an expiation notice under the Expiation of Offences Act 1996 in respect of the offence and allowed the opportunity to expiate the offence in accordance with that Act.
Implicitly s 47BA(6) commands that the police issue an expiation notice to a person aged 16 years or more alleged to have committed a first offence of drug driving.
Section 47BA(7) RTA deals with the question of when a charge of drug driving under s 47BA(1) is a first offence. It provides:
(7)In determining whether an offence is a first offence for the purposes of subsection (6), any previous drink driving offence or drug driving offence for which the person has been convicted or that the person has expiated will be taken into account, but only if the previous offence was committed or alleged to have been committed within the prescribed period immediately preceding the date on which the offence under consideration was allegedly committed.
The prescribed period was defined in s 47A(3) as three years if the previous offence was a category 1 offence (meaning an offence against s 47B(1) involving a concentration of alcohol of less than .08 grams in 100 millilitres of blood; s 47A(1)) or five years in any other case. Clearly an allegation that a person has committed the offence of drug driving is not a category 1 offence. Accordingly, if a person has been convicted of or expiated the offence of drug driving within five years of the date upon which they again commit such offence, a complaint charging that person may be laid irrespective of whether an expiation notice has first been issued. Thus, if a person is charged with drug driving, and, such person is 16 years of age or over, and, has never committed an offence against s 47BA(1) before, or, if they have committed an offence against s 47BA(1) before, that offence was committed over five years ago, then, unless the defendant has been issued with an expiation notice in relation to the offence and been afforded the opportunity to expiate it, the prosecution is incompetent and the information or complaint should be dismissed.
In its operation s 47BA(6) may be considered to have three aspects; first, it is a constraint on the power to prosecute, second, it immunises the accused to whom it applies against prosecution in the absence of the preconditions being satisfied, and third, it denies a court jurisdiction to try a charge alleging the commission of an offence of drug driving if the preconditions are not satisfied in relation to an accused person to whom the section applies.
I do not think s 47BA(6) can be said to be an exception, exemption, proviso, excuse or qualification within the meaning of s 56 of the Criminal Procedure Act 1921 (SA). An exception, exemption, proviso, excuse or qualification to which s 56 applies are, generally speaking, in the nature of justifications or excuses provided by statute or carve outs from a liability otherwise imposed. Section 47BA(6) is none of these.
Interesting questions arise as to the procedural operation of s 47BA(6). My preliminary view is that absent an application by an accused person, the section is not engaged. However, upon an application being made (and if such application is made the accused should not be arraigned), the onus shifts to the prosecution to satisfy the preconditions contained in s 47BA(6). With the exception of the applicable standard of proof, I did not hear argument on these questions and so refrain from arriving at a concluded view. In the present case, the question of whether the preconditions contained in s 47BA(6) were satisfied was raised at a pre-trial hearing and the prosecution accepted that the burden was upon it to satisfy the court that the preconditions were satisfied. On appeal, the Crown did not deviate from that position.
What is plain is that the preconditions contained in s 47BA(6) that apply in relation to a person 16 years of age or over who has never committed an offence against s 47BA(1) before, or, if they have, such offence did not occur within the prescribed period immediately preceding the date on which the offence under consideration was allegedly committed, are not elements of the offence created by s 47BA(1). Where the competence of a prosecution is challenged for want of satisfaction of the preconditions, the offence is not tried until the court is satisfied that it has jurisdiction to do so. Thereupon the elements of the offence created by s 47BA(1) are as contained in that section and the burden of proving those elements is borne by the prosecution to the ordinary criminal standard.
With respect to the applicable standard of proof where an accused contends that the preconditions contained in s 47BA(6) cannot be established, as proof of those preconditions goes to establish jurisdiction I see no reason why the standard is not the balance of probabilities as is generally the case where the authority to decide a cause is dependent upon the existence of particular facts. In my view, the position in the present case is analogous to that in Thompson v The Queen where the jurisdiction of the Supreme Court of the Australian Capital Territory to try the accused for murder depended upon proof of either where the cause of death or the death itself occurred.[2] Mason CJ and Dawson J, with whom Gaudron J agreed, said:[3]
The issue of guilt is necessarily determined within a particular jurisdiction. But the issue cannot be determined unless the prosecution establishes the authority of the jurisdiction to enter judgment. This issue, namely, whether the offence was committed within the jurisdiction, is distinct from that of guilt, namely, whether the elements of the offence are made out. Proof of jurisdiction is a prerequisite of guilt but otherwise it is not an element in proof of the commission of the offence except in those cases in which the offence is so defined that commission of it in a place or locality is made an element of the offence charged. Proof of the commission of the offence must be demonstrated beyond reasonable doubt. But this does not mean that proof of the existence of jurisdiction must first be established beyond reasonable doubt.
The fundamental principle of our criminal law is that the accused’s guilt must be established beyond reasonable doubt. The law requires that standard of proof of the commission of a criminal offence in order to eliminate or minimize the chance that an innocent person might be found guilty with all the grave consequences that such an erroneous condemnation would have for the accused, for our system of justice and for the community generally: Brown v. The King. The fundamental principle is not offended if the facts essential to the existence of jurisdiction in the court to enter judgment are required to be established according to the civil standard of proof. That is a discrete question which may be left to a jury upon the lesser standard of proof without diverting them from the standard which they are otherwise required to apply in determining guilt or innocence. Cf. Ahern v. The Queen. The policy or purpose which underlies the fundamental principle is sufficiently served and the protection of the accused adequately assured if the criminal standard of proof is applied to all the facts relied upon to make out the elements of the offence. …
[footnotes omitted]
[2] (1989) 169 CLR 1.
[3] Thompson v The Queen (1989) 169 CLR 1 at 12-13.
Returning to s 47BA(7) momentarily, it will not be enough for the prosecution to show that the accused to whom s 47BA(6) applies has previously been charged with drug driving within the prescribed period to render competent a subsequent prosecution for drug driving commenced without an expiation notice first being issued. The accused must have been charged and convicted or expiated the prior drug driving offence or, been issued with an expiation notice for the prior drug driving offence and afforded the opportunity to expiate that offence.
Although I did not hear argument on the issue, I am inclined to think that a conviction for the purposes of s 47BA(7) means a finding of guilt. As for what amounts to expiating an offence, as at February 2015 that could occur in one of three ways. First, under s 4(3) of the Expiation Act a person expiated an offence when the person paid all of the amounts due under an expiation notice, including any levy payable under the Victims of Crime Act 2001 (SA), or such amounts were recovered from the person in accordance with that Act. Second, under s 9, an alleged offender who entered into an arrangement with the Fines Enforcement and Recovery Officer for the payment of an expiation notice was to be taken to have expiated the offence in relation to which the notice was issued for the purpose of any other Act or law. Lastly, if the Fines Enforcement and Recovery Officer made an enforcement determination in relation to an expiation notice, the alleged offender was taken to have expiated the offence to which the determination related.
As mentioned, at trial the prosecution relied upon exhibit P12 as establishing that the drug driving charge contained in the complaint laid against the appellant was in fact a second or subsequent drug driving offence alleged to have been committed within the prescribed period. Exhibit P12 was a certified extract from the Register of Drivers’ Licences relating to licence number UXXXXX held by Gregory Donovan Gwynfor Morcom of Pennington, South Australia. It is three pages in length. On the first page under the sub-heading, “Licence Details as at: 11/06/2015 09:35”, it is indicated that licence number UXXXXX was a full car licence that was inactive or expired as at 4 December 2014. As at that same date the licence had eight active demerit points.
There is then a second heading, “Offence and Disqualification details for the period: 01/01/96 to 11/06/2015”, beneath which the following table is set out (the first table):
Offences (*Active Demerit Point offences) Date Description Demerit Points Details (if known) 26/10/2014 Driving with a prescribed drug (Mobile Driver Testing) - Methylamphetamine 4* 19/09/2014 Driving with a prescribed drug - Methlamphetamine 4* 08/06/2014 Exceed speed limit by 10 kph or more but less than 20 kph 3 08/06/2014 Exceed speed limit by 10 kph or more but less than 20 kph 3 04/06/2014 Exceed speed limit by 30 kph or more 7 04/06/2014 Exceed speed limit by 20 kph or more but less than 30 kph 5 18/05/2014 Exceed speed limit by 10 kph or more but less than 20 kph 3 10/05/2014 Exceed speed limit by less than 10 kph 2 23/01/2014 Exceed speed limit by less than 10 kph 2 18/01/2014 Exceed speed limit by 10 kph or more but less than 20 kph 3 18/01/2014 Entered intersection against red traffic light 3 29/12/2013 Exceed speed limit by less than 10 kph 2 08/12/2013 Exceed speed limit by 10 kph or more but less than 20 kph 3 16/11/2013 Exceed speed limit by less than 10 kph 2 12/10/2013 Exceed speed limit by less than 10 kph 2
The first table includes an additional 17 entries regarding offences committed in the period 18/09/1998 – 13/08/2010. For present purposes it is unnecessary to include those entries. The asterisk attached to the record of the demerit points that the offences of 26/10/2014 and 19/09/2014 attracted is said by the document to signify that those demerit points are active.
On page two of the exhibit the following table (the second table) appears:
Disqualifications Disqual No. Disqualification Type Act
Section From Until 14 Drug Driving (81D) MVA 81D 13 Demerit MVA 98BC 11 Demerit MVA 98BC 9 Demerit MVA 98BC 8 Demerit MVA 98BC 05/02/2006 05/02/2006 6 Probationary MVA 81B 30/05/2007 29/11/2007 5 Court RTA 47e 05/02/2006 04/02/2007 4 Demerit MVA 98BC 01/12/2004 28/02/2005 3 Court RTA 47(1)(A) 01/12/2003 30/11/2004 2 Demerit MVA SECT 98B 02/02/1996 05/02/1996
The balance of the exhibit is not relevant for present purposes.
At trial the prosecutor submitted that the first two entries in the extract from the first table proved that for the two offences listed, both being contrary to s 47BA(1), the appellant had either been convicted or expiated the offences. That conclusion followed, it was said, from the incursion in each instance of four demerit points. Demerit points may only be incurred under s 98B MVA if a person is convicted of an offence, or expiates an offence, of a kind prescribed by the regulations. Further under reg 67 and sch 4 of the Motor Vehicles Regulations 2010 (SA), conviction of the offence created by s 47BA(1), or expiation of the same, will see the person charged or to whom an expiation noticed was issued incur four demerit points. Lastly, for each of the first two entries in the first table the date of the offence falls within the prescribed period.
The Magistrate’s Reasons
The Magistrate’s reasons open by recording the appellant’s plea of not guilty. Next reference is made to the trial proceeding “on the basis that defence does not dispute the factual circumstances of the prosecution case, that the defendant had committed the offence on the day in question”, lists the exhibits constituting the tendered prosecution case, and then, under the heading “The Offence”, provides a summary of the prosecution case. Next, under the heading “Discussion”, the Magistrate records how the trial unfolded procedurally.
The trial proceeded with an opening by the prosecutor a brief outline of the prosecution case, and the tendering of the exhibits with the consent of defence. I acknowledge Mr Lloyd informed the court at the commencement of the trial that defence would be seeking for the charge to be dismissed even though it is conceded that the defendant had committed the offence.
However, there was no preliminary application by way of a voir dire for the dismissal of the Complaint, or for a stay of proceedings. Defence did not seek to cross examine any prosecution witness and did not present any evidence.
Having read and considered the contents of the exhibits, where relevant and admissible, I am satisfied that prosecution have fulfilled the statutory presumptions to be applied in this case as would prove the facts of the offence.
Noting that the defence did not dispute the factual circumstances of the prosecution case, and having read the affidavit statements of Senior Constable Blackburn (Exhibit P10) and Police Constable Yan (Exhibit P11), I am satisfied that prosecution have established all the elements of the offence against the defendant beyond any reasonable doubt.
Be that as it may, in his closing address to the trial, Mr Lloyd submitted that the charge should nevertheless be dismissed in that, at the outset, police, and by legal extension, the prosecuting authority, had not given the defendant an expiation notice in respect of the offence to thus allow him the opportunity to expiate the offence. …
I have already commented on the procedure invoked.
In his reasons the Magistrate records the concession made by the prosecution that the appellant was not given an expiation notice on 28 February 2015. The Magistrate also records the explanation; the licence check revealed that the accused’s licence displayed an “Alcohol and Drug Indicator”. I note that there was no evidence as to what this indicator means. Further, on my reading of the Senior Constable’s statement, it is not clear whether the indicator is an endorsement on the licence or on the system accessed to check the status of the licence. From the bar table the prosecutor explained that when police officers undertake a licence check the system provides for a “flag” to appear if a person has an alcohol and drug indicator and, if such indicator does appear, police will not issue an expiation notice but proceed to arrest or report the offender. That explanation may be right, but it was not evidence adduced in an admissible form and could not be taken into account by the Magistrate.
The Magistrate held:
I am satisfied to the exclusion of any other reasonable inference, that the “displayed Alcohol and Drug Indicator” of the defendant’s licence according to Senior Constable Blackburn included the two driving with prescribed drug offences of 19/9/2014 and 26/10/2014 detailed in Exhibit P12.
It is not clear to me on the admitted evidence how this conclusion could be reached.
Next, having regard to s 98B(1) MVA the Magistrate indicated that it was reasonable to conclude from the demerit point entries made in P12 “that the defendant had either been convicted or had expiated the offences for those demerit points to be incurred.” He added, “I note the demerit points are depicted as “Active”.”
The Magistrate then records that in his opinion P12 is a business document and admissible under s 53 of the Evidence Act 1929 (SA) before concluding:
In this context, I am satisfied beyond reasonable doubt that … the defendant had committed the two driving with a prescribed drug offences of 19 September 2014 and 26 October 2014, within the prescribed period in accordance with s.47BA(7) RTA.
Hence, there was no requirement for police to have issued the defendant with an expiation notice for the offence.
Submissions
At trial the prosecution agreed that the appellant had not expiated either of the 2014 offences constituting the first two entries in the first table. That is, expiation did not occur under s 4(3). In the light of this concession, counsel for the appellant submitted it was necessary that the prosecution prove that the Fines Enforcement and Recovery Officer had made an enforcement determination within the meaning of s 13 of the Expiation Act otherwise it could not be established that the appellant had expiated either of the 2014 offences.
Counsel for the appellant submitted in the course of his address that the preconditions contained in s 47BA(6) had to be proved beyond reasonable doubt. Counsel for the respondent disputed this. Earlier in these reasons I have set out my view. Counsel for the appellant could point to nothing in the RTA to suggest that the approach in Thompson v The Queen should not be applied.
The argument before the Magistrate and in this Court proceeded on the assumption that the appellant was not prosecuted for the 2014 offences and did not enter into an arrangement with the Fines Enforcement and Recovery Officer under s 9 of the Expiation Act. Accepting this, the appellant submitted that the only way s 47BA(6) could be satisfied was if expiation of the 2014 offences occurred under s 13. In this regard P12 did not prove that an enforcement determination had occurred such that the deeming effect of s 13(3) was triggered and the appellant taken to have expiated the 2014 offences.
Counsel agreed that the first two entries in the first table meant that on each of 26/10/2014 and 19/09/2014 the appellant had committed the offence of drug driving, but he contended that in the absence of an explanation as to what the document meant when it referred to those offences as attracting “active” demerit points, it was dangerous to conclude that those same demerit points had been imposed consequent upon the offences being expiated particularly in the absence of proof of any determination by the Fines Enforcement and Recovery Officer. Related to this, counsel pointed out that P12 was not a document for which the Fines Enforcement and Recovery Unit was responsible and submitted that a certificate from the Registrar of Motor Vehicles regarding the responsibilities of another government agency was inadequate.
Counsel submitted that if the Court allowed the appeal the dispositive orders would include setting aside the appellant’s conviction and quashing the complaint.
Counsel for the respondent submitted that P12 fell to be understood in the context of the statutory scheme for the punishment and enforcement of driving offences created by the RTA found in the inter-linking operation of the RTA, MVA, Expiation Act and related regulations. In this connection she submitted the Magistrate’s approach was correct in that interrogating P12 in the light of that scheme established that the preconditions contained in s 47BA(6) were met.
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.
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.
In the present case the appellant did not object to the tender of P12. Rather, at trial and on appeal he concentrated on the capacity of the exhibit to prove the preconditions contained in s 47BA(6).
The probative value to be attributed to a matter stated in a document tendered under s 140(1) is addressed by the section. The fact asserted may be taken as proved in the absence of proof to the contrary. The section may be considered as establishing a rebuttable presumption. Any matter stated may be presumed true and correct in the absence of proof to the contrary. No need arises in this case to consider whether the shift in onus contemplated by s 140(1) carries with it a persuasive or evidential burden.[4] In this case the appellant has proffered no evidence to the contrary. His case is that taken at its highest P12 is not capable of proving the preconditions contained in s 47BA(6).
[4] See Hollick v Police (2012) 112 SASR 188.
The matters stated in an extract tendered under s 140(1) are limited to those pertaining to any register kept pursuant to the Act. That is an important limitation. More importantly for present purposes, the keeping of a register pursuant to the Act necessarily contemplates that the information or matter stated in an extract from the register can be linked to the regulatory scheme created by the legislation that the register serves. This being so, resort to the regulatory scheme created by the legislation may contribute to the meaning of a matter stated in an extract. If I am wrong and such resort is not contemplated by s 140(1), then any additional fact is the product of interrogating the relevant legislation and regulations. As the Magistrate rightly observed, under s 35 of the Evidence Act 1929 (SA) a court may take judicial notice of a legislative instrument. Thus both legislation and regulations can be considered together with the content of P12.
I turn to the first table contained in exhibit P12. Counsel for the appellant did not dispute that the first two entries contained in the table indicated that the appellant had committed the offence of drug driving on each of 26/10/2014 and 19/09/2014. Clearly those offences were committed within the prescribed period. The table states that in relation to each of those offences the appellant sustained four demerit points. The driver’s licence demerit points scheme is dealt with by Part 3B MVA. Section 98B(1) MVA provides:
Where a person is convicted of, or expiates, an offence of a kind prescribed by the regulations, the number of demerit points prescribed by the regulations in relation to that offence is, subject to this section, incurred by that person.
As mentioned reg 67 and sch 4 of the Motor Vehicles Regulations 2010 (SA) prescribed four demerit points for an offence committed contrary to s 47BA(1) RTA.
Having regard to the legislative scheme the first two entries in the table indicate that for each of the offences committed on 26/10/2014 and 19/09/2014 four demerit points were imposed on licence UXXXXX consequent upon the licence holder, the appellant, being convicted of or expiating the said offences. Put slightly differently, it may be deduced from the first two entries contained in the first table set out in P12 that the appellant was convicted of or expiated the offences to which those entries relate because, were it otherwise, he could not have incurred the demerit points. That being so, it may be concluded that the 28 February 2015 offence was not a first offence within the meaning of s 47BA(6) and the prosecution was competent.
Bearing in mind the concession made by the prosecution at trial, there was evidence contrary to the proposition that the appellant had been convicted of the offences committed on 26/10/2014 and 19/09/2014 and incurred the related demerits points in consequence. Further it was also conceded that the appellant did not expiate either offence under either ss 4(3) or 9 of the Expiation Act. That left expiation under s 13(3) as the explanation for the imposition of the demerit points. I reject the submission that it was necessary that the prosecution adduce evidence that the Fines Enforcement and Recovery Officer had made an enforcement determination under s 13 of the Expiation Act. The fact that such determination had been made could be deduced from the first two entries contained in the first table of P12. No evidence has been adduced to the contrary. Whatever the standard, the onus of adducing evidence is upon the accused. That onus is not discharged merely by pointing to a fact that may be inferred from P12 taken with the legislative scheme and insisting that the prosecution prove such fact by direct evidence. It amounts, in effect, to submitting that a court should doubt the veracity of the register and insist upon proof of the occurrence of the acts the register purports to record as occurring. To accede to the submission would be to deny s 140(1) the very effect it was intended to have. I do not think the submission gains any strength from the fact that expiation under s 13 is dependent upon the act of an authority other than the Registrar. First, because under s 73(2) MVA the Registrar is under a statutory duty to keep and maintain the register of licences and to ensure that it contains all information necessary to the administration of the Act. It cannot be doubted that the accurate recording of the incursion of demerit points and the related disqualification status of driving licences is necessary to the administration of the MVA. Second, under s 93(3a) MVA provision is made for the Registrar to be advised when a person expiates an offence that attracts demerit points including, at the relevant time, by the Fines Enforcement and Recovery Officer. No reason arises to think this did not occur. There is no evidence to suggest that the statutory scheme has not been properly invoked and complied with.
Nor do I think that the designation of the demerit points as “active” detracts from the conclusion. Whilst I cannot be certain, it is likely that “active” demerit points are those that have not been discounted under s 98BE(5) MVA in consequence of a disqualification imposed under s 98BC. Whatever the meaning to be attributed an “active” demerit point, the fact is P12 evidences the imposition of four demerit points for each of the 26/10/2014 and 19/09/2014 offences which, in this case, must have occurred upon the expiation of those offences under s 13(3) of the Expiation Act.
The alternate argument advanced by the respondent may also be accepted. The first entry in table two evidences the disqualification of licence number UXXXXX under s 81D MVA. Having regard to s 81D(2), that disqualification could only be imposed if the appellant expiated the drug driving offence to which it relates. Section 81D was inserted into the MVA in 2005.[5] In its original form, and until amended in 2017,[6] the disqualification provided for in s 81D(2) was statutorily imposed for a second and subsequent offence against s 47BA(1). That suggests that it is likely that the first entry in table two relates to the 26/10/2014 offence referred to in the first table, the 19/09/2014 offence being a first offence. The absence of any record as to the period of the disqualification does not mean that there was no disqualification. It merely means that from P12 the period of the disqualification imposed is not known. P12 still proves the fact of a disqualification imposed in consequence of the expiation of a drug driving offence under s 81D. Reading table two in the light of table one, and having regard to the Registrar’s statutory obligations, it is more likely than not that the s 81D disqualification recorded in table two was imposed for the 26/10/2014 offence. Accepting this, the first entry in table two also evidences the expiation of a drug driving offence by the appellant within five years of the 28 February 2015 charge.
[5] Section 81D was inserted by the Road Traffic (Drug Driving) Amendment Act 2005 (SA) sch 1 cl 7 and came into operation on 1 July 2006.
[6] The amendment came into operation on 8 March 2018; Statutes Amendment (Drink and Drug Driving) Act 2017 (SA) s 11(2).
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.
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