Oberoi v Douglas
[2025] VSC 7
•24 January 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 00596
| AMANPREET OBEROI | Plaintiff |
| and | |
| FIRST CONSTABLE BRENDAN DOUGLAS | First Defendant |
| THE COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | GRAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 November 2024 |
DATE OF JUDGMENT: | 24 January 2025 |
CASE MAY BE CITED AS: | Oberoi v Douglas |
MEDIUM NEUTRAL CITATION: | [2025] VSC 7 |
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JUDICIAL REVIEW AND APPEALS — Application for orders in the nature of prerogative writs pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) —Special circumstances explaining delay in commencing proceeding — Extension of time granted pursuant to r 56.02(3) of the Rules — Judicial review of County Court order imposing four year driver disqualification for offence under s 49(1)(e) of Road Safety Act 1986 of refusing to comply with a requirement under s 55(1) to accompany a police officer to a place where a sample of breath would be furnished — Plaintiff claiming certiorari and a consequential order for mandamus regarding minimum mandatory disqualification period — Driver licence disqualification for minimum of four years under s 50(1B)(b) if a relevant ‘old offence’ renders a new offence a ‘subsequent offence’ — No error of law established in County Court’s reliance on a certificate issued under s 84(1) for proof of old offence — Road Safety Act 1986 ss 48(2), 49(1), 50(1B), 55(1), 84(1), 90 — Criminal Procedure Act 2009 ss 77(2A), 78, 86 — Road Safety (General) Regulations 2019 reg 74.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Hardy | Dib & Associates Lawyers |
| For the First Defendant | Mr J O’Connor | Office of Public Prosecutions |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Legislative context............................................................................................................................. 2
Factual context.................................................................................................................................... 8
Consideration.................................................................................................................................... 18
Extension of time......................................................................................................................... 19
First ground................................................................................................................................. 20
Second ground............................................................................................................................. 23
Third ground............................................................................................................................... 28
Conclusion and orders.................................................................................................................... 31
HIS HONOUR:
Did the County Court make any of the errors of law alleged by the plaintiff in relying on a certificate issued under s 84(1) of the Road Safety Act 1986 (Vic) (RSA) when disqualifying the plaintiff from obtaining a driver licence for four years?
Introduction
The plaintiff was found guilty by a judge of the County Court of an offence under RSA s 49(1)(e) of refusing to comply with a requirement under s 55(1) of the RSA to accompany a police officer to a place where a sample of breath would be furnished.
The prosecution relied on a certificate issued under s 84(1) of the RSA (RSA certificate) to prove that the plaintiff had an ‘old offence’ within the meaning of s 48(2) of the RSA, such as to render the new offence a ‘subsequent offence’ for the purposes of the RSA, making him liable to a mandatory minimum of four years’ disqualification from obtaining a driver licence under s 50(1B)(b) of the RSA. The County Court heard submissions on whether the RSA certificate was valid and admissible. The County Court gave a ruling to the effect that the old offence recorded in the RSA certificate would be taken into account. The County Court disqualified the plaintiff for four years.
The plaintiff applied for leave to file an originating motion for judicial review 22 days out of time in respect of the County Court’s disqualification of the plaintiff for four years.
By his originating motion, the plaintiff claimed an order in the nature of certiorari on the basis that the County Court erred in law in ruling, on 21 November 2023, that the offence was a subsequent offence attracting a ‘mandatory obligation to … disqualify’ the plaintiff for a ‘minimum mandatory 4 year period under s 50(1B)(b) … instead of imposing the minimum mandatory period … under s 50(1B)(a)’ of the RSA.[1] The plaintiff also claimed a consequential order for mandamus. Error of law on the face of the record was said to arise for the following three reasons:
[1]Plaintiff’s originating motion filed 13 February 2024, introductory paragraph 1 under the heading referring to the grounds of the originating motion.
(a) that the RSA certificate was inadmissible by reason of s 90(3) and (4) of the RSA and the plaintiff’s refusal at the hearing to consent to the tender of the RSA certificate (first ground);
(b) that the RSA certificate was inadmissible by reason of s 77(2A)(c) of the Criminal Procedure Act 2009 (Vic) (CPA) and the RSA certificate’s failure to specify the amount of the penalty included in the infringement notice that led to the infringement conviction relied upon by the prosecutor (second ground);
(c) that the RSA certificate was ‘not admissible’ because it was ‘simply handed up by the prosecutor to the [County Court] over the plaintiff’s objection and viewed … without being formally tendered as an exhibit for the prosecution … or marked as an exhibit’ (third ground).
I have decided to grant an extension of time, but to reject each of the three grounds of alleged error of law. It follows that the proceeding will be dismissed. My reasons for each of these conclusions appears under the heading ‘Consideration’ below.
First, however, it is necessary to say something of the context of the case, both legislative and factual.
Legislative context
The RSA[2] pt 5 is entitled ‘Offences involving alcohol or other drugs’. In that pt 5, s 48 is entitled ‘Interpretative provisions’. At the time of the plaintiff’s relevant alleged offending (on 25 February 2019), sub-s 48(2) relevantly provided:
[2]The version current at the time of the County Court’s order was Version No. 219 incorporating amendments as at 13 October 2023. However, it has also been necessary to consider the version that applied at the time of the alleged old offence on 26 July 2014, Version No. 159C incorporating amendments as at 2 July 2014 , and the version that applied at the time of the new offence on 25 February 2019, Version No. 190 incorporating amendments as at 1 November 2018.
(2) If a person who is convicted, or found guilty, of an offence against—
(a) any one of the paragraphs of section 49(1); or
…
(the new offence) has at any time been convicted, or found guilty, of—
(d)an offence, other than an accompanying driver offence, against the same or any other of those paragraphs or that section; or
(e)an offence against any previous enactment corresponding to any of those paragraphs or that section or any corresponding law; or
(f)an offence referred to in section 89 of the Sentencing Act 1991 where the court on convicting or finding the person guilty of the offence made a finding that it was committed while the person was under the influence of alcohol or a drug, or both alcohol and a drug, which contributed to the offence or such a finding is taken to have been made by force of section 89C(3) of that Act—
(an old offence), the new offence is to be taken to be a subsequent offence for the purposes of this Act and, if relevant for those purposes, also to be a second offence if the person has only ever been convicted, or found guilty, of one old offence.[3]
[3]An amendment to sub-s 48(2)(d) commencing on 4 December 2019 in Version No. 197 changed the words ‘an accompanying driver’ to ‘a supervising driver’.
Section 49 is entitled ‘Offences involving alcohol or other drugs’. It relevantly provided:
(1) A person is guilty of an offence if he or she—
…
(b)drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath; or
…
(e)refuses to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A); or
…
Section 55(1) relevantly empowered a police officer in certain circumstances to require a person who had undergone a preliminary breath test to ‘furnish a sample of breath for analysis by a breath analysing instrument’ and for that purpose also empowered the police officer to ‘require the person to accompany a police officer … to a place or vehicle where the sample of breath is to be furnished…’.
Section 50 is entitled ‘Provisions about cancellation and disqualification’. Sub-section (1B) provided:
On convicting a person, or finding a person guilty, of an offence under section 49(1)(a), (c), (d) or (e) the court must, if the offender holds a driver licence or learner permit, cancel that licence or permit and, whether or not the offender holds a driver licence or learner permit, disqualify the offender from obtaining one for such time as the court thinks fit, not being less than—
(a) in the case of a first offence, 2 years; and
(b) in the case of a subsequent offence, 4 years.
RSA pt 6 is entitled ‘Offences and legal proceedings’. In pt 6, s 84 is entitled ‘General evidentiary provisions’. Section 84(1) provided:
A certificate containing the prescribed particulars purporting to be issued by the Corporation or the Department or the CPVC or an authorised person certifying as to any matter which appears in or can be calculated from the records kept by the Corporation or the Department or the CPVC or a delegate of the Corporation or the Department or the CPVC is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate.[4]
[4]By an amendment to this section commencing on 1 January 2020 in Version No. 198, references to ‘Corporation’ were changed to ‘Secretary’.
RSA pt 7 is entitled ‘Infringements’. For reasons that will become clear, it is necessary to consider aspects of the RSA relating to infringements at the time of earlier offending conduct (on 26 July 2014) alleged against the plaintiff. Charges for certain offences, including ‘drink-driving infringements’[5] could be brought by an infringement notice being issued to a person. A ‘drink-driving infringement’ was relevantly an offence under s 49(1)(b), (f) or (g) of the RSA, provided that the offence was a first offence having regard to the provisions of s 48(2).[6]
[5]See RSA s 3, definitions of ‘infringement’ and ‘traffic infringement’.
[6]Ibid s 3, definition of ‘drink-driving infringement’.
An infringement notice for a drink-driving infringement may take effect as a conviction if the person does not object within a certain period.[7]
[7]Ibid s 89A.
Within pt 7, s 90 is entitled ‘Proof of prior convictions’. At the time of the plaintiff’s relevant alleged offending in February 2019, sub-s (1) provided that ‘[i]f a person is served with a summons for any infringement and it is alleged that he or she has been previously convicted or found guilty of any infringement or infringements there may be served with the summons a separate document containing the prescribed particulars signed by the informant setting out particulars of the alleged prior convictions or findings of guilt’.
The remainder of RSA s 90 provided as follows:
(2)The document setting out the alleged prior convictions or findings of guilt—
(a)must be endorsed with a notice containing the prescribed particulars; and
(b)may be served in any manner in which the summons for the infringement may be served.
(3)If the court by whom any person has been convicted or found guilty is satisfied that a copy of any such document was served on that person at least 14 days before the hearing of the information the document is admissible and is evidence—
(a)that the person was convicted or found guilty of the offences alleged in the document; and
(b)of the particulars relating to the convictions or findings of guilt set out in the document.
(4)Any such document may not be tendered in evidence without the consent of the accused if the accused is present at the hearing of the information.
(5)Without limiting the generality of the provisions of Part 3.4 of Chapter 3 of the Criminal Procedure Act 2009, where any evidence of prior convictions or findings of guilt has been tendered pursuant to the provisions of this section, the court may set aside, on any terms as to costs or otherwise that the court decides, any conviction, finding or order if it has reasonable grounds to believe that the document tendered in evidence was not in fact brought to the notice of the accused or that the accused was not in fact convicted, or found guilty, of the offences as alleged in the document.
The Road Safety (General) Regulations 2019 (Vic) (RS Regulations), reg 74, provided that the prescribed particulars for each of sub-ss 90(1) and (2)(a) were as follows:
(1)For the purposes of section 90(1) of the Act, a document setting out particulars of alleged prior convictions or findings of guilt must contain the following particulars—
(a) the name and address of the person to whom it applies;
(b) in respect of each alleged prior conviction or finding of guilt—
(i)the court that convicted the person or found the person guilty; and
(ii) the date of the alleged conviction or finding of guilt; and
(iii) a short description of the alleged offence.
(2)For the purposes of section 90(2)(a) of the Act, the prescribed particulars are a statement that the document will be admissible as evidence that the person has been previously convicted or found guilty as alleged if—
(a)the person does not appear in answer to the summons served with the notice; and
(b)the person is convicted or found guilty of the infringement alleged in the summons.
CPA ch 3 governs the summary procedure for hearing and determination of offences. CPA pt 3.3 is entitled ‘Summary hearing’. It is divided into nine divisions, relating to different stages of the summary hearing process. There is no division providing generally for the sentencing stage per se. However, div 9 is entitled ‘Criminal record’ and relates to sentencing. It consists of two provisions, s 77 entitled ‘Criminal record’ and s 78 entitled ‘Proof of previous convictions and infringement convictions by criminal record’. At the time of the plaintiff’s relevant alleged offending in February 2019, s 77 relevantly provided:
(1)A criminal record must contain, in relation to each previous conviction—
(a) the date of the previous conviction; and
(b) the court in which the previous conviction took place; and
(c) the place of sitting of that court; and
(d) the offence committed; and
(e) the sentence imposed.
Note
Previous conviction is defined by section 3 to refer only to a conviction or finding of guilt made by a court and does not include an infringement conviction.
…
(2A)A criminal record must contain, in relation to each infringement conviction—
(a)the date on which the infringement notice took effect as a conviction; and
(b) the offence specified in the notice; and
(c)the amount specified in the notice as the penalty for the infringement; and
(d) any other penalty that results from the operation of the notice.
Example
A period of cancellation, disqualification or suspension of a licence or permit.
CPA s 78 provided:
(1)If a person is found guilty of an offence in a summary hearing, the prosecution may provide to the court the criminal record, if any, of the person.
(2)The court must ask the person whether the person admits the previous convictions and infringement convictions set out in the criminal record.
(3)If the person admits to a previous conviction or infringement conviction, the court may sentence the person accordingly.
(4)If the person does not admit to a previous conviction or infringement conviction, the prosecution may lead evidence to prove the previous conviction or infringement conviction.
(5)A legal practitioner appearing for the person may, on behalf of the person, admit a previous conviction or infringement conviction set out in the criminal record.
Notes
1Section 178 of the Evidence Act 2008 provides for proof of previous convictions by the filing of a certificate.
2Section 86 of this Act provides for proof of a criminal record in the absence of the accused.
Section 86 of the CPA relevantly provided that if the Magistrates’ Court is satisfied that the accused was served with a copy of the criminal record 14 days before the hearing of the charge, it is admissible for the purpose of sentencing and ‘is evidence that the accused has the previous convictions and infringement convictions set out in the criminal record’ and of the particulars in the criminal record.
The Sentencing Act 1991 (Vic) also contains provisions relating to cancellation of driver licences and driver disqualification,[8] but they operate independently of RSA s 50 and it is not necessary to consider them here.
[8]Sentencing Act 1991 pt 4 div 3.
Factual context
The evidence before me, reproduced in a court book tendered by the parties, was set out in:
(a) an affidavit of the plaintiff’s solicitor and supporting exhibit bundle,[9] which gave a lengthy history of the relevant charges, the proceedings in the Magistrates’ Court and County Court, and the reasons for this proceeding being commenced late; and
(b) an affidavit of a solicitor employed by the Office of Public Prosecutions and supporting exhibit bundle,[10] which gave a succinct account of the key circumstances the subject of the grounds of judicial review and included a verified copy of the RSA certificate.
[9]Affidavit of Zoe Annabel Davis affirmed 5 July 2024 and exhibit bundle ‘ZAD-1’ (Davis affidavit), court book (CB) 6–309.
[10]Affidavit of Sarah Louise Goegan affirmed 30 July 2024, and exhibit bundle ‘SLG-1’ (Goegan affidavit), CB 310–375.
On the basis of that evidence, I am satisfied of the following facts.
By a charge-sheet and summons filed on 8 August 2019 by the first defendant as police informant, the plaintiff was charged with three offences (the Douglas charges), charge 1 of which was an offence under s 49(1)(e) of the RSA. The particulars of this charge were:
The accused at Cooper Street Epping on 25/02/2019 after having been required to furnish a sample of breath pursuant to section 55(1) of the Road Safety Act 1986 and for that purpose a requirement was made for him to accompany a police officer to a place, namely Mill Park Police Station, he did refuse to comply with such requirement to accompany the police officer prior to three hours elapsing since the driving of a motor vehicle.
By boxes ticked ‘no’, the charge-sheet indicated that the Douglas charges were not infringement offences. This is relevant to the decision I have reached on the first ground, as I explain below.
The Douglas charges went before the Magistrates’ Court on a number of occasions from 20 January 2020 to 5 December 2022, when they were listed for a contested hearing.
The prosecution brief for the Douglas charges included a document titled as a certificate under s 84(1) of the RSA and dated 6 March 2019. That document set out three matters dated 3 September 2012, 24 August 2014 and 14 March 2017, giving certain details for each in a column titled ‘offence and penalty’. For the matters dated 3 September 2012 and 14 March 2017, these details included a fine in a specified amount. For the matter dated 24 August 2014, the details appearing under the heading ‘offence and penalty’ included no fine but stated:
EXCEEDING THE PRESCRIBED CONCENTRATION OF ALCOHOL BETWEEN .070% - .099% DATE OF OFFENCE: 26/07/2014 CAR LICENCE OR PERMIT CANCELLED AND DISQUALIFIED FOR 6 MONTHS FROM 24/08/2014 BIKE LICENCE OR PERMIT CANCELLED AND DISQUALIFIED FOR 6 MONTHS FROM 24/08/2014 NOT TO BE RELICENSED EXCEPT BY ORDER OF A MAGISTRATE
The Douglas charges were consolidated with three charges set out in a charge-sheet and summons filed on 27 August 2022 by Shaun Trait as police informant (the Trait charges).
Proceedings in the Magistrates’ Court on all of the Douglas and Trait charges were finalised on 5 December 2022. The plaintiff was found guilty of the three Douglas charges and two of the three Trait charges. An aggregate fine of $1500 was imposed without conviction. On charge 1 of the Douglas charges the plaintiff’s licence was cancelled and he was disqualified for four years from 5 December 2022.
The plaintiff appealed from the outcome of the Douglas charges. It appears that, as these charges had been consolidated with the Trait charges, they were all listed for appeal under s 254 of the CPA. After various procedural steps, on 18 September 2023, a judge of the County Court ordered the proceeding in the County Court to be listed for a two-day appeal on conviction and sentence, as a ‘de novo’ rehearing, on 16 and 17 November 2023.
For the purposes of the appeal, the prosecution sought to rely on a new document titled as a certificate under s 84(1) of the RSA in relation to the plaintiff, in expanded and updated form.[11] This is the RSA certificate that is central to the issues before me. It relevantly provided:
[11]CB 367-369.
State of Victoria
Road Safety Act 1986
Certificate Under Section 84(1)
THIS IS TO CERTIFY THAT [the plaintiff’s name and details appeared]
MATTERS WHICH APPEAR IN OR CAN BE CALCULATED FROM THE RECORDS KEPT BY THE SECRETARY TO THE DEPARTMENT OF TRANSPORT.
ORIGIN DATE OFFENCE AND PENALTY HEIDELBERG MAGISTRATES CT
BROADMEADOWS MAGISTRATES CT
TRAFFIC INFRINGEMENT NOTICE
BROADMEADOWS MAGISTRATES CT
05/12/2022
14/03/2017
24/08/2014
03/09/2012
…[details of dispositions of the three Douglas charges on 25 February 2019, and details of dispositions of two of the three Trait charges on 26 June 2022, appeared]…
EXCEEDING 60 KPH SPEED LIMIT SIGN BY
LESS THAN 10 KPH
DATE OF OFFENCE: 09/11/2015
FINED $320
WITHOUT CONVICTIONEXCEEDING THE PRESCRIBED CONCENTRATION
OF ALCOHOL BETWEEN .070% - .099%
DATE OF OFFENCE: 26/07/2014
CAR LICENCE OR PERMIT CANCELLED AND DISQUALIFIED
FOR 6 MONTHS FROM 24/08/2014
BIKE LICENCE OR PERMIT CANCELLED AND DISQUALIFIED
FOR 6 MONTHS FROM 24/08/2014
NOT TO BE RELICENSED EXCEPT BY ORDER OF A MAGISTRATEEXCEEDING 100 KPH SPEED LIMIT SIGN BY 45 KPH OR MORE
DATE OF OFFENCE: 30/03/2012
FINED $600
CAR PERMIT OR LICENCE SUSPENDED
FOR 12 MONTHS FROM 03/09/2012
BIKE PERMIT OR LICENCE SUSPENDED
FOR 12 MONTHS FROM 03/09/2012…
DATED AT KEW 23/10/2023
Paul Younis
Secretary to the Department of Transport…
The hearing of the appeal on 16 and 17 November 2023 took place before his Honour Judge McInerney.[12]
[12]The affidavit of Ms Davis refers in a number of places to his Honour Judge McNamara, but I infer that to have to been in error. The transcript for each day of the hearing refers to Judge McInerney.
During cross examination of a police witness, there was discussion about whether the plaintiff should have been warned that he was at risk of a four year period of disqualification by reason of a relevant prior offence.
Early in the second day of the hearing, on 17 November 2023, the County Court gave its determination in the matter. The plaintiff was found guilty on various charges including charge 1 of the Douglas charges.
The transcript records that his Honour then asked whether it was known whether the plaintiff had any prior offending, and the prosecutor answered in the affirmative, referring to ‘VicRoads offences’.[13] At that point, Ms Davis on behalf of the plaintiff indicated that they were not accepted, and an exchange with his Honour ensued. His Honour inquired how long the hearing would need to be adjourned to enable the prosecution to ‘prove the priors’.[14] In the course of that exchange Ms Davis said of the prosecution that:[15]
They seek to tender a certificate which we say is invalid.
[13]CB 222.
[14]Ibid 222-223.
[15]Ibid 223.
His Honour acknowledged the significance of the issue to the disposition of the case, saying to Ms Davis:[16]
The penalty, as you pointed out, for a first offence is two years off the road. If there's a second offence, then it's four years off the road.
[16]Ibid 224.
Ms Davis then made submissions to the effect that there should not be an adjournment and that the hearing should proceed with the issue of the proof of the plaintiff’s alleged prior offences depending on whether or not the RSA certificate was ‘valid’.[17] In this regard, Ms Davis submitted:[18]
… even if we don’t admit it, it is actually warranted for the police to submit the s84 certificate unless there is an invalidity which is then - prevents them from submitting that certificate.
[17]Ibid 224-225.
[18]Ibid 224.
His Honour asked Ms Davis:[19]
So are you not leading any evidence in contrary?
[19]Ibid 225.
Ms Davis answered in the affirmative, explaining that answer as follows:[20]
HIS HONOUR: Well, what is the evidence? What evidence are you leading?
MS DAVIS: The evidence to the contrary is s77(2)(a) of the Criminal Procedure Act in regards to evidence of prior convictions, infringement convictions. The infringement conviction which is within the 84(1) certificate fails to meet the requirements of a lawful record, therefore, although we don't admit the priors we have no grounds to refuse the prosecution from submitting the 84 certificate unless there is an invalidity. The invalidity is evidence to the contrary. That then puts them on notice that they have to lead and prove the prior in another way.
[20]Ibid 226.
Ms Davis referred to s 77(2A) of the CPA in this regard.[21]
[21]The transcript erroneously records this as a reference to ‘s 77(2)(a)’.
There followed a passage of the hearing in which his Honour and both counsel discussed the legislative provisions applicable to the charges and the appropriate disposition on a finding of guilty. His Honour expressed a preliminary view that there was no relevant previous offence alleged by the prosecution in relation to charge 1 of the Douglas charges, and so the minimum mandatory disqualification period for the charge appeared to be two years, not four years as imposed by the Magistrates’ Court. After some initial hesitation, both counsel expressed agreement. (It later emerged that this preliminary conclusion was based on an incorrect reading of the applicable provisions). There was also discussion of the Trait charges , and a view was expressed that the minimum mandatory disqualification period arising from those charges would be 26 months.
Returning to the implications of charge 1 of the Douglas charges, Ms Davis again referred to the RSA certificate relied upon by the prosecution and to CPA s 77(2A). She submitted that under that provision a ‘criminal record’ must contain prescribed information in relation to each infringement including the amount specified as the penalty. She submitted that no such amount was specified ‘and therefore it does not contain the required particulars to be tendered’.[22] Ms Davis’ submissions culminated in the following exchanges:[23]
[22]Ibid 234.
[23]Ibid 235-236.
MS DAVIS: Your Honour, before you is the alleged proof and it is invalid.
HIS HONOUR: It’s dated 23/10/23.
MS DAVIS: And it is invalid.
HIS HONOUR: Why?
MS DAVIS: As Your Honour just read out the required particulars are not contained. It is extremely clear what is required in a proof of a prior infringement conviction.
HIS HONOUR: Yes, well.
MS DAVIS: If it does not contain those required particulars, it cannot in and of itself be accepted as evidence … it is an invalid certificate. The prosecution are then able to lead other evidence to try and prove the prior. However we’d say that it should be proceeding today as - - -
HIS HONOUR: Why should it? You raise an issue which is – I don’t even know whether it’s a proper issue but on its face, you appear to be raising something that invokes 77(2A).
MS DAVIS: Yes. And they’re seeking to tender evidence in a plea and it would be prejudicial and unjust, given the time that this matter has been on foot since 2019.
HIS HONOUR: There's nothing prejudicial or unjust about it. It's either proved … or it’s not.
MS DAVIS: Absolutely.
HIS HONOUR: This offence goes back to 2014.
MS DAVIS: Exactly and as Your Honour has made very clear there has been plenty of time to prepare. There has been plenty of time for the prosecution to seek to obtain the necessary evidence and to undertake that what they are providing - - -
HIS HONOUR: Yes, but I’m - - -
MS DAVIS: - - - is valid.
HIS HONOUR: I’d have to hear more on this, I’m not happy with that submission at all.
His Honour indicated that he would adjourn the hearing of the plea for further submissions.
Ms Davis opposed the adjournment, seeking finality and indicating that the plaintiff was ‘willing to accept the subsequent offence finding on the .05 matter’,[24] which was a reference to one of the Trait charges.
[24]Ibid 237.
There is no dispute before me that at some point during the hearing on 17 November 2023, the prosecutor handed up the RSA certificate. This was deposed as follows by the solicitor for the prosecution:[25]
Following the judge’s ruling, the prosecutor provided to the Court an evidentiary certificate under s 84(1) of the Road Safety Act 1986 dated 23 October 2023 …
[25]Goegan affidavit [7], ibid 311.
Initially, during the hearing on 17 November 2023, his Honour indicated that he would not receive the RSA certificate because it was subject to an objection. Later, during discussion of the RSA certificate, it is clear that his Honour did receive a copy of it from Mr Trent, the prosecutor. I find that this occurred at the point where the transcript records the following exchange:
HIS HONOUR: Yes. Can I have a look at the document, please?
MR TRENT: Have you seen this?
MS DAVIS: Yes, yes.
His Honour then, in effect, led a detailed discussion of the prior offending recorded on the RSA certificate, and the application of applicable provisions of the RSA to that offending. I find that it was clear to all present, including the plaintiff and Ms Davis, that a copy of the RSA certificate was in his Honour’s possession.
Although Ms Davis had opposed adjourning the hearing on Friday 17 November 2023, and although the hearing then continued for some time, in the end his Honour adjourned it, part heard, to Tuesday 21 November 2023.
Over the intervening weekend, the prosecution made submissions in writing by email. Relevantly with respect to charge 1 of the Douglas charges, the submissions were that a minimum 4 year disqualification period applied, as follows:
Present offence and prior offence – charge 1
New Offence: Refuse Accompany Police for Breath Analysis (s.49(1)(e) RSA) found guilty on 17 November 2023.
Old Offence: Exceed P.C.A between .070%-.099% (s.49(1)(b) RSA) – Drink driving infringement issued on 26 July 2014, took effect on 24 August 2014.
…
Pursuant to s.48(2)(d) RSA to qualify as a subsequent offence, the accused must have either been convicted or found guilty of an offence against the same section being 49(1) or any other of those paragraphs. The accused was found guilty of drink driving an offence against section 49(1)(e) which then qualifies as a subsequent offence.
Penalty under s.49(3) RSA and disqualification set out in s.50(1B) RSA – charge 1
It is respectfully submitted that on a straightforward interpretation of s.48(2), the new offence is a second offence for the purposes of penalty under s.49(3) RSA (with a maximum penalty of 120 penalty units or 12 months imprisonment) and a subsequent offence for the disqualification period (4 years) as set out in s.50(1B) RSA.
Ms Davis responded by email objecting to the prosecution’s submissions. In the alternative, she submitted:
Lastly, we clarify the current sentencing / our position involved certain concessions being made by our client on the basis of the sentencing arguments made and accepted and should any such position change we would therefore also be required to withdraw all concessions and reopen the argument of invalidity, as this would otherwise be a gross miscarriage of justice for prosecution to misuse this last adjournment of His Honour’s as an opportunity to change the entire sentencing basis and position of prosecution and the parties, if not to also consider that the accused would similarly be required to re-argue his position also - which we would very much intend on doing.
Further emails were exchanged between the County Court and the parties. In one of them, Ms Davis attached written submissions and drew attention to the case of Brasse,[26] which I address under the heading ‘Consideration’ below.
[26]CB 259-268. Victoria Police v Brasse [2023] VMC 1 (Brasse).
The hearing on 21 November 2023 began in the absence of Ms Davis. His Honour gave a ruling as follows:[27]
HIS HONOUR: The court adjourned this sentence, the defence through his representative, Ms Davis, decided not to pursue the objection which she’s put as to section 78(2A) [sic.] of the Criminal Procedure Act as to criminal record and its contents. I therefore adjourned on the basis of making a determination in those circumstances.
Since Friday the prosecution have alerted the court to s48(2) which provides that Mr Oberoi’s conviction on Charge 1 on the Douglas summons is a second offence.
Despite the concern expressed in the letters from Ms Davis such was an obligation upon all counsel, especially when the prosecution in this case did not put this matter to me on Friday, having no doubt become aware of it through his instructors or whoever I won't postulate, it is clear that all counsel had an obligation to put matters to the court to ensure there was no mistakes made as to sentencing.
That is, that Mr Oberoi is exposed therefore to higher loss of licence by way of a penalty of four years.
It has been indicated, again by letter to the court, unfortunately Ms Davis not appearing before the court on either occasion today, that as a result of her client being exposed to a higher sentence she wished to pursue her objection pursuant to s78(2A) [sic.] of the Criminal Procedure Act as to a criminal record.
The problem with that of course is that what the prosecution rely on is not a criminal record insofar as the requirements of the Criminal Procedure Act is concerned. But the prosecution rely on s84(1)(d) of the Road Safety Act to prove an earlier offence and penalty imposed under section 49(1), in fact under 49(1)(h), which pursuant to s48(2) renders this offence a subsequent offence under 49(1) and pursuant therefore to section 50(1B)(b) means cancellation for not less than four years.[28]
[27]CB 270, 276-277.
[28]I assume that his Honour’s references to ‘s 78(2A)’ recorded in the transcript were intended by him to be references to s 77(2A).
His Honour then explained the ruling to the plaintiff, saying:[29]
Mr Oberoi, in the circumstances, in common language therefore, you are liable now because of the second offence as deemed under the Act to four years which is what the magistrate gave you.
[29]Ibid 271.
At that point, the Associate told his Honour that Ms Davis had just sent written submissions to the Court. The plaintiff said he believed they had been ‘sent prior’. His Honour said he would read them before pronouncing sentence. Mr Trent had also just received the submissions. The following exchange occurred:[30]
[30]Ibid 272.
MR TRENT: … Look I’ve only read the emailed submission and Brasse, the case of Brasse.
HIS HONOUR: You don’t rely on that proof, you are simply relying on 84(1).
MR TRENT: Correct.
HIS HONOUR: Of the Road Safety Act.
MR TRENT: I haven’t read all of the material that has been tendered, Your Honour and I - - -
HIS HONOUR: Well I have and there is no basis to it.
MR TRENT: Well, I was going to say that Brasse seems distinguishable in any event, ...
His Honour then explained to the plaintiff his view that the written submissions did not ‘in any way impinge on the operation of the section relied upon by the prosecution’.[31] His Honour then heard brief submissions from the plaintiff.
[31]Ibid 273.
The plaintiff did not give any evidence on the issue of whether he had previously been found guilty of any relevant offence.
His Honour pronounced sentence on the plaintiff.[32] His Honour’s sentencing remarks relevantly included the following:[33]
… in regard to the Douglas summons, in regard to you refusing to accompany the police officer you will be convicted pursuant to s49E [sic.] of an offence and in so much as that offence is concerned I will fine you … 10 penalty units …
Pursuant to the legislation, this being a subsequent offence you are disqualified for a period of four years from the 5th day of November … 2022, … so you’ve nearly done a year. So you have another three years to go, cancellation. All right?
In regard to Charge 2, a breach of regulation 48 of the Road Safety Rules, that is that you veered right without a signal, I will sentence you to the payment of one penalty unit. That is $165.22.
In regard to Charge 3 on the Douglas summons, that is exceed 70, I will fine you four penalty units making a total of $660.88.
So the total fine under the Douglas matter of all matters is $2,643.50 and your licence is cancelled from the 5th of November ‘22 for four years.
[32]Ibid 275.
[33]Ibid 279-285.
Consideration
Under the following four headings of this section, I set out my reasons for concluding that the time to commence the proceeding should be extended but that the three substantive grounds of the originating motion should be dismissed.
Some aspects of the written submissions in reply prepared on behalf of the plaintiff extended beyond the grounds in the originating motion. No application to amend the originating motion to raise new grounds was notified to the defendants or the Court, and no such application was made. It would not be appropriate to determine the additional arguments those submissions raised. In any event, they were not pressed at the hearing.
Extension of time
Rule 56.02(1) and (2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) have the effect that the proceeding was required to be commenced within 60 days after the order of the County Court on 21 November 2023 that imposed the four year disqualification period. That is, the plaintiff was required to begin this proceeding by 20 January 2024.
The proceeding was in fact commenced 22 days later, on 12 February 2024, when the plaintiff filed his originating motion.
Rule 56.02(3) provides that the Court ‘shall not extend the time fixed by paragraph (1) except in special circumstances’.
The originating motion was filed only a modest amount of time after the deadline. It is clear from the Davis affidavit, and I accept, that the delay arose from reasonable causes including difficulties in obtaining the audio recording of the proceeding and preparation of transcript, the intervention of the vacation period from late December 2023 to mid-January 2024, and the limited availability of legal practitioners. In my view, these matters alone constituted special circumstances. This is probably enough to lead me to grant leave.
In case I need to go further, I also note my view that the grounds relied upon by the plaintiff in this proceeding were reasonably arguable. Although I have ultimately decided the grounds against the plaintiff, the issues were finely balanced. Further, the potential prejudice to the plaintiff of refusing leave was great and there was no prejudice to the defendants. If it be permissible or required to take such matters into account in deciding whether the case was one of special circumstances,[34] then in my view they only serve to reinforce my conclusion that special circumstances were present. It follows that my discretion to grant an extension of time is enlivened.
[34]See Neil J Williams, LexisNexis Butterworths, Civil Procedure Victoria, [I 56.01.40].
In all the circumstances referred to in the preceding two paragraphs, the case was one that justified an exercise of my discretion to grant an extension of time and to grant of leave to the plaintiff to rely on his originating motion.
I therefore grant the plaintiff an extension of time in which to commence the proceeding nunc pro tunc (that is, retrospectively) and leave to rely on his originating motion pursuant to r 3.02(1) and r 56.02(3) of the Rules.
First ground
The plaintiff’s first ground of error of law was that the RSA certificate was inadmissible by reason of s 90(3) and (4) of the RSA and the plaintiff’s refusal at the hearing to consent to the tender of the RSA certificate.
In support of this ground, the plaintiff submitted that:[35]
Section 90(4) is a provision of specific application dealing with the express discrete situation envisaged therein and prevails over the more general provision s 84…(1) which is of much wider scope and utility. It is very simply worded and abundantly clear on its meaning – there is no patent or latent ambiguity in it. It prevails over s 84(1).
That s 84(1) RSA document was thus inadmissible for that reason to prove a disputed sentencing fact, ie the existence of a prior relevant offence for purposes of s 48(2) and 50(1B)(b) of the RSA. The prosecutor ought to have applied to adjourn the hearing to attempt to prove the prior conviction in an admissible way.
[35]Plaintiff’s outline of submissions filed 13 June 2024, [13]-[14].
According to the plaintiff’s argument, it followed that the absence of the plaintiff’s consent under RSA s 90(4) was fatal to the prosecution’s attempt to rely on the RSA certificate.
During the course of argument, counsel for the plaintiff acknowledged that the RSA certificate met the requirements of a valid certificate under s 84(1) of the RSA.[36] The plaintiff’s argument in support of the first ground did not depend on whether the RSA certificate met (or did not meet) the requirements of s 84(1). The plaintiff’s argument was in effect that s 90 relevantly covers the field of potential ways the prosecution was able to attempt in this case to prove a relevant prior offence, and that s 90 leaves no work to be legitimately done by a certificate under s 84(1).
[36]Transcript of Proceedings, Oberoi v Douglas (Supreme Court of Victoria, S ECI 2024 00596, Gray J, 20 November 2024), p 12 lines 24–29; p 20 line 21.
The answer to the key issue raised by this ground can be quite briefly stated. Section 90 did not apply to charge 1 of the Douglas charges, and so the ground fails. For that reason, whatever may be the proper resolution of the statutory question[37] purportedly raised by the first ground in cases in which s 90 is engaged, s 90 cannot be said to have displaced the operation of s 84(1) in the present case.
[37]See Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, [70] (McHugh Gummow, Kirby and Hayne JJ). See also Agar v McCabe [2014] VSC 309; 67 MVR 81, [47] (T Forrest J).
Section 90 would only have applied to sentencing for charge 1 of the Douglas charges if charge 1 was brought by summons for an ‘infringement’, as made clear by s 90(1). As already mentioned, charge 1 was for an offence under RSA s 49(1)(e). The word ‘infringement’ in s 90(1) means a ‘parking infringement’ or a ‘traffic infringement’: RSA s 3(1). The term ‘traffic infringement’ includes, among others, a ‘drink-driving infringement’, meaning offences ‘under section 49(1)(b), (f) or (g) …’ (none of which cover charge 1), and offences that are prescribed ‘for the purposes of Part 7’. The prescribed offences are set out in Schedule 7 to the RS Regulations: see reg 69. The prescribed offences do not include an offence under s 49(1)(e) of the RSA either. Charge 1 was not an ‘infringement’.
The plaintiff acknowledged that charge 1 was not an infringement, but pointed to there being one or more infringements amongst the other charges heard by the County Court in the consolidated appeal hearing. The plaintiff submitted that sentencing for all charges must be done by reference to the same material, given that the charges were heard together. As already noted, upon finding the plaintiff guilty on five charges, the Magistrates’ Court had imposed an aggregate fine on him of $1500.
I do not accept that these circumstances mean that s 90 rendered the RSA certificate inadmissible for the purposes of applying the interpretative and mandatory driver disqualification provisions in ss 48(2) and 50(1B)(b) of the RSA to charge 1, for two reasons.
First, I consider that this aspect of the sentencing process, which is the only aspect of the sentencing process impugned in this judicial review proceeding, is to be considered separately from the remainder of the sentencing process conducted by the County Court. The record of the alleged old offence — the infringement conviction on 24 August 2014 that took effect via a traffic infringement notice for an offence on 26 July 2014 — was not required to comply with s 90 for the purpose of sentencing related to solely to charge 1, because charge 1 was not itself for an ‘infringement’ and so fell outside s 90(1). His Honour sentenced the plaintiff separately on charge 1.
Second, and in any event, there is no evidence on the facts of this case that s 90 was engaged in relation to any of the Douglas charges, or for that matter any of the other charges that were before the County Court on appeal. As the words ‘there may be served with the summons’ in s 90(1) make clear, the regime in s 90 of the RSA is permissive — the prosecution may or may not choose to avail themselves of it. If they do so choose, they may serve a separate document answering the description in s 90(1) on an accused. The most obvious reason why the prosecution might choose to do so is that, provided the document was served at least 14 days before the hearing, s 90(3) would then — in the absence of the accused — enable the court to rely on the document as evidence of its contents relating to the accused’s prior offending.[38] One feature of such a document must (under s 90(2)(a)) be an endorsement with the notice prescribed by RS Regulations, reg 74(2). That notice provides a warning to the accused that the document will be admissible as evidence of the prior findings of guilt or convictions in the document ‘if the person does not appear in answer to the summons served with the notice’ and is found guilty of the infringement alleged in the summons. There is no evidence before me that a document endorsed by such a notice relating to the RSA certificate was served on the plaintiff in relation to the Douglas charges, or in relation to the appeal before the County Court.
[38]Under s 90(4), it is a different matter if the accused is present in court: in that case the court can only receive the document if the accused consents.
For these reasons, the admissibility of the RSA certificate was not relevantly governed by s 90 of the RSA, and the withholding of consent to tender by the plaintiff did not result in the RSA certificate being inadmissible under s 90(4) for the purposes of proving the infringement conviction on 24 August 2014.
Second ground
The plaintiff’s second ground of alleged error of law was that the RSA certificate was inadmissible by reason of s 77(2A)(c) of the CPA and the certificate’s failure to specify the amount imposed as the penalty for the previous infringement conviction relied upon by the prosecutor.
The plaintiff relied on the case of Brasse.[39] In that case, during a sentencing hearing before her Honour Magistrate Studham, the prosecution sought to rely on a certificate issued under RSA s 84(1) to prove that the accused had a relevant prior conviction involving a charge of drug driving. If proven, the offending before her Honour would have been a subsequent offence, thereby increasing the mandatory minimum licence disqualification period from six months to twelve months. The accused did not provide consent under RSA s 90(4). Counsel acting on behalf of the accused (who happens to have been Ms Davis), did not admit the prior matter and objected to the tendering of the certificate. It was put that the certificate was inadmissible in the absence of consent under s 90(4) and on the basis that it did not disclose the amount of the fine imposed for the old offence and therefore could not be adduced under s 77(2A) of the CPA.[40] Her Honour accepted the argument and ruled the certificate inadmissible.[41] Her Honour followed an unreported decision of another magistrate in this regard,[42] concluding at [18]:
In this case, the Certificate does not comply with s 77(2A)(c) of the CPA nor does it comply with reg 79(1)(b)(iii) of the RSA Regulations which each require specification or description of the penalty imposed. Therefore, the Certificate does not comply with legislation, is deficient and unable to be relied upon by the prosecution in this case.
[39]Op cit fn 26.
[40]Brasse [1].
[41]Ibid [17]-[18].
[42]Victoria Police v Kerrison (Unreported, Magistrates Court of Victoria at Latrobe Valley, Magistrate Hayes, 11 February 2016).
The RSA certificate in this proceeding specifies the amounts of various fines imposed as penalties for the various previous offences recorded in it. It is only the details recorded in the certificate for the offence of exceeding the prescribed concentration of alcohol between 0.070% and 0.099% on 26 July 2014 that makes no reference to any fine. What am I to make of this?
RS Regulations sch 7 item 123 specified that the infringement penalty for an offence under RSA s 49 in the range of 0.07 to 0.10 g/100 ml of blood was 3 penalty units.
However, s 77(2A)(c) focuses attention not on the applicable penalty per se, but on ‘the amount specified in the notice as the penalty for the infringement’. The infringement notice for the alleged offence on 26 July 2014 should have included a reference to the amount corresponding to three penalty units.[43] However, I have no way of knowing whether or not the infringement notice actually specified the penalty for the infringement allegedly committed 26 July 2014. Because the details for other offences recorded in the RSA certificate include fines, I am reluctant to infer that the RSA certificate omits to record a fine that was actually imposed for the plaintiff’s alleged offending on 26 July 2014. It is equally likely that the infringement notice did not specify the mandated infringement penalty, and that no fine was imposed.
[43]According to the website sentencingcouncil.vic.gov.au, for financial year 2014-2015 a penalty unit was $147.61, so that amount should have been which $442.83.
In short, I am not satisfied on the material and submissions before me that the RSA certificate fails to meet the requirements of s 77(2A)(c) of the CPA.
This raises a question as to burden and standard of proof. In the proceedings below, the prosecution bore the burden of proving any fact relied upon against the plaintiff, and the standard to which those facts had to be proved was beyond reasonable doubt. This applied to every fact relied upon for sentencing purposes.[44] However, in a proceeding for relief in the nature of the prerogative writs, the plaintiff bears the burden of establishing any facts on which his claim for relief depends,[45] on the balance of probabilities. The plaintiff has not demonstrated that the RSA certificate failed to specify the ‘the amount specified in the notice as the penalty for the infringement’ for the alleged offence on 26 July 2014, and has therefore not established an essential element of his claim that the error of law alleged in the second ground occurred.
[44]R v Storey [1998] 1 VR 359, 370-371 (Winneke P, Brooking, Hayne JJA, and Southwell AJA).
[45]See R v Foster; ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138, 153 (Dixon, Fullagar and Kitto JJ).
The second ground would therefore fail for this reason alone. However, there is something unsatisfactory and paradoxical about this, because the plaintiff bore no burden in the proceedings in the County Court.
If I were to be wrong in imposing the usual burden in prerogative writ proceedings on the plaintiff and in rejecting the second ground on this basis, it would be necessary to consider two further questions:
(a) if the prosecution’s reliance on the RSA certificate was dependent on the operation of CPA ss 77 and 78, was any failure on the part of the certificate to meet the requirement in s 77(2A)(c) of the CPA fatal to the admission of the RSA certificate?
(b) did s 84(1) provide a method of proving the alleged old offence that was available to the prosecution in spite of the operation of CPA ss 77 and 78?
I have considered these questions, and they are the true basis my conclusion on the second ground. My answer to these questions are (a) no, and (b) yes, for the reasons that follow.
In order to be a ‘criminal record’ under CPA s 77, a document must contain the details in s 77(1), and for any infringement conviction it must contain the details in sub-s (2A). I infer from the contents of the RSA certificate that the plaintiff’s alleged prior offending on 26 July 2014 took effect as an infringement conviction on 24 August 2014. Because that alleged prior offending took effect as an infringement conviction, then unless the document contained all the details relating to that offence required by s 77(2A) (including the amount specified in the infringement notice as the penalty for the infringement that took effect as an infringement conviction) it did not have the character of a ‘criminal record’ for the purposes of s 77 of the CPA.
Whether or not a document purporting to be a ‘criminal record’ containing a record of an infringement conviction complies with all aspects of s 77(2A) might have important implications in the event the prosecution attempts to rely on s 86 of the CPA for the purposes of sentencing the accused in their absence.
However, it less clear that this matters if the accused is present. That is because, if the accused is present, the accused will presumably either admit or not admit the prior offending outcomes recorded in a purported criminal record, and:
(a) if they admit the prior outcomes, it may be arguable that the court is entitled to rely on the admission and that an omission of required information from the document may be immaterial to the outcome; and
(b) more importantly for present purposes, if they do not admit the prior offences in the document, then it is even harder to see how any omission of required information from it could have any effect on the outcome. In that event, it will be open to the prosecution to invite the court to find that the prior offending is proved by leading evidence.
In the latter case, the course of proving the prior offending by leading evidence is open to the prosecution whether or not the document in question fulfilled the definitional requirements of a ‘criminal record’ under s 77.
Is there any reason for thinking that a certificate under s 84(1) of the RSA would be excluded from the available means of proving such prior offending? I think not. In my view, s 84(1) provided a means of proving prior offending by the plaintiff under the RSA independently from ss 77 and 78 of the CPA, for the reasons that follow.
(a) If the certificate was a ‘criminal record’ within the meaning of s 77 of the CPA, then the operative provision in this case was s 78(4) of the CPA, which applied because the plaintiff did ‘not admit’ the ‘previous conviction or infringement conviction’. Section 78(4) provided that, in that event, the prosecution were able to ‘lead evidence to prove the previous conviction’.
(b) Note 1 to s 78, which forms part of the CPA,[46] is significant to what is meant by ‘leading evidence’ to prove the previous conviction. That note draws attention to s 178 of the Evidence Act 2008 (Vic) (Evidence Act), noting that s 178 ‘provides for proof of previous convictions by the filing of a certificate’. Section 178 facilitates the issuing of certificates as to orders and other outcomes in court proceedings signed by officers of the applicable court and does not apply here. Nevertheless, the presence of Note 1 is an indication that the legislature intended to leave the door open for proof of previous convictions by other means, and that those means could include the tendering of documents such as certificates issued under a statute. In my view, like a certificate under s 178 of the Evidence Act, a certificate issued under s 84(1) of the RSA would qualify as a means of proof.
[46]Interpretation of Legislation Act 1984 (Vic) s 36(3A).
(c) If the certificate was not a ‘criminal record’ within the meaning of s 77 of the CPA, then s 78 was not engaged at all. In that case, it is necessary to consider whether the legislature intended that CPA ss 77 and 78 prescribe the only means available to the prosecution in the circumstances to prove the plaintiff’s prior offending under the RSA, to the exclusion of RSA s 84(1). As a matter of orthodox statutory interpretation, explained in the sub-paragraphs that follow, I do not think the legislature intended any such thing.
(d) The plaintiff in effect submitted that s 84(1) of the RSA should be read down as only facilitating proof of matters to which it refers other than matters of the kind which could be included in a ‘criminal record’ under s 77 of the CPA. The plaintiff relied on the general principle or maxim of statutory construction that the general should yield to the specific, and in addition the plaintiff argued that CPA s 77 should take precedence as the more recently enacted provision.
(e) However, there is no basis for invoking these principles. They would only have been important in the event of an inconsistency between s 84(1) of the RSA and ss 77 and 78 of the CPA. On my reading of the RSA and CPA together, there is no such inconsistency. The presence of s 78(4) in the CPA is important in this regard. It leads me to conclude that, in enacting ss 77 and 78 of the CPA, the legislature did not intend to cover the field and provide only one method of proving prior offending.
(f) There is no proper basis for reading down s 84(1) of the RSA; it was available in accordance with its full terms as a means of proof of the plaintiff’s prior offending under the RSA.
For these reasons, the second ground is not established.
Third ground
The plaintiff’s third ground of alleged error of law was that the certificate was ‘not admissible’ because it was ‘simply handed up by the prosecutor to the [County Court] over the plaintiff’s objection and viewed … without being formally tendered as an exhibit for the prosecution … or marked as an exhibit’.
The originating motion contained no alternative claim that the County Court breached the rules of procedural fairness in connection with its handling of the certificate. This is significant. It means that the only issues before me are whether a formal and express ‘tender’ by the prosecution was required, and whether the certificate needed to be formally noted as received in evidence and marked as an exhibit. I am not required to determine whether any broader form of procedural unfairness occurred.
I was not taken to any case in which a court has decided whether any particular formal words of tender must be used by a party or legal representative in order to tender (or adduce) a document in evidence. The Evidence Act speaks of adducing evidence,[47] including by tendering documents,[48] but it does so without prescribing what is required to be done or said to tender a document.
[47]Eg, Evidence Act2008 ch 2 heading and ss 43, 46, 47, 48, 50, and 52.
[48]Eg, Ibid pt 2.2, ss 35, 37, 45, 48, 49, and 52.
In my view, as a matter of elementary procedural fairness, parties to litigation must make it clear when they intend to tender a document. In this regard, best practice is to state one’s intention to tender the document in question by using the word ‘tender’. However, I do not think that there is a firm rule that the validity of a tender depends on the use of the word ‘tender’. A tender can be implied, provided it is clear what is happening. In my view, the question of whether a document has been validly tendered by a party depends on whether it was clear in all the circumstances that this is what was intended by that party.
Here, although the prosecutor did not at any point state that he sought to ‘tender’ the certificate, it was clear to all concerned that this is what he intended. As noted in my factual findings above, at the hearing before his Honour Judge McInerney, the plaintiff’s legal representative stated her understanding that the prosecution was seeking to tender the certificate. Once Ms Davis had acknowledged that, it was unnecessary for the prosecution to repeat it. Later in the hearing, when his Honour asked the prosecutor for a copy of the certificate and this was provided, it was clear to all that the certificate had been tendered, subject to resolution of the admissibility issues raised on behalf of the plaintiff. No other characterisation of events is reasonably open. In these circumstances, there was no need for a further statement by Mr Trent that the certificate was being tendered either during the sentencing hearing on Friday 17 November 2023, or in the written submissions provided over the weekend on the question of the certificate’s admissibility, or after his Honour delivered his ruling relating to the certificate the following Tuesday.
The ruling[49] did not expressly state a conclusion that the certificate was ‘admissible’ but did identify Ms Davis’s objection to the prosecution’s reliance on the RSA certificate, and moreover identified Ms Davis’ reliance in that regard on ‘s 78(2A)’ of the CPA, which must be understood as an intended reference to s 77(2A). Having identified these matters, his Honour said:
The problem with that of course is that what the prosecution rely on is not a criminal record insofar as the requirements of the Criminal Procedure Act is concerned. But the prosecution rely on s84(1) … of the Road Safety Act to prove an earlier offence and penalty.
[49]CB 276-277.
It was sufficiently clear from this statement that his Honour was overruling the objection on the basis that the RSA certificate had the character of a certificate under s 84(1) of the RSA. The overruling of the objection amounted to its admission into evidence.
Likewise, there was no need for the certificate to be marked as an exhibit in order for it to be ‘admissible’. I was not taken to any decided case in support of the plaintiff’s argument in this regard. The attempt to relate the marking of an exhibit to the question of admissibility is in any event illogical. In my view, the question of admissibility was an anterior question, and is not capable of being affected by whether the document was or was not ultimately marked as exhibit.
In case the plaintiff did not intend to advance this strand of his argument in the manner addressed in the preceding paragraph, I have also considered whether — absent formal identification as an exhibit — a document should not be taken to have been adduced or accepted into evidence. I do not think there is any such rule. As in the case of the tendering of documents, no doubt a court should make it clear to all concerned when a tendered document is accepted into evidence and when it is not. But there may be ways in which that can occur without specifically and formally marking a document as an exhibit.
Here, as already noted, it was clear to all that the prosecution were tendering the certificate, subject to the validity or admissibility issues raised by the plaintiff. It was clear from his Honour’s ruling on 21 November 2022 that those issues were resolved in favour of the prosecution. His Honour ruled that the certificate was not invalid and that it would be taken into account, resulting in a longer minimum period of driver disqualification for the plaintiff. His Honour did not need to make a further, formal, statement that he was admitting the certificate into evidence. His ruling clearly implied that he was doing so, as explained above. If there was any doubt about the ruling carrying that implication, then his Honour’s further explanation to the plaintiff (to the effect that the plaintiff would be subject to a four year driver disqualification) should have dispelled that doubt. It was clear in all the circumstances that the certificate was received into evidence by his Honour.
The best practice of parties clearly stating when documents are being tendered, and the best practice of the courts marking such documents as exhibits when they are received into evidence, no doubt are adopted because they are well adapted to ensuring that procedural fairness is accorded. But this does not mean that every failure to adhere to these practices is procedurally unfair. Provided a tender is clearly implied, and provided it is clear when a document is received into evidence, it may be that no breach of procedural fairness will have occurred. In any event, given the way the grounds were framed, I was not required to determine any claim of denial of procedural fairness. It is unnecessary for me to say anything further on that issue.
Conclusion and orders
The proceeding will be dismissed.
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