Paul Lawrence Reynolds v Brendan James McTernan

[2012] ACTMC 7

PAUL LAWRENCE REYNOLDS v BRENDAN JAMES MCTERNAN
[2012] ACTMC 7 (7 NOVEMBER 2012)

CRIMINAL LAW –– whether charge under s 32(2)(b) of the Road Transport (Driver Licensing) Act 1999 (ACT) may be brought in circumstances where the elements of an offence under s 61C of the Road Transport (General) Act 1999 (ACT) are made out

Road Transport (Driver Licensing) Act 1999 (ACT) s 32(2)(b)
Road Transport (General) Act 1999 (ACT) s 61
Legislation Act 2001 (ACT) ss 191, 139, 141
Criminal Code 2002 (ACT) ss 308, 321, 403
Crimes Act1900 (ACT) s 116(3)

Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2010

Supplementary Explanatory Statement for the Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2010
Debates of the Legislative Assembly for the Australian Capital Territory 18 November 2010

Environment Protection Authority v Djura [2012] NSWLEC 122

Maxwell v The Queen 184 CLR 501
Russell v Pangallo [2012] ACTMC 4
Saraswati v The Queen (1991) 172 CLR 1
Lawson v Gault (2002) 145 FCR 1
Hoffman v Chief of Army (2004) 137 FCR 520
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1

No. CC 4335 of 2012

Magistrate:      Mossop
Magistrates Court of the ACT

Date:               7 November 2012

IN THE MAGISTRATES COURT OF THE         )
  )          No. CC 4335 of 2012
AUSTRALIAN CAPITAL TERRITORY               )

BETWEEN:PAUL LAWRENCE REYNOLDS

Informant

AND:BRENDAN JAMES MCTERNAN

Defendant

ORDER

Magistrate:  Magistrate Mossop
Date:  7 November 2012
Place:  Canberra

THE COURT ORDERS THAT:

(a)The defendant’s oral application made on 6 November 2012 is dismissed.

History of Proceedings

1. Yesterday, when these proceedings were before me, the defendant made an oral application that the proceedings on charge CC2012/4335 be stayed. The ground for the application was that it is not open to the informant to proceed with a charge under s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (“Driver Licensing Act”) in circumstances where the elements of an offence under s 61C of the Road Transport (General) Act 1999 (ACT) (“General Act”) were made out. Although, as ultimately articulated, the precise basis for the application was not clear, I treated the application as based on the proposition that:

   (a) the enactment of s 61C of the General Act removed from the scope of s 32(2)(a) offences which fell within s 61C or, alternatively,
   (b) to charge an offence against s 32 where a charge against s 61C was available amounted to an abuse of process.

2. I dismissed the application and indicated that I would give reasons for my decision today, which I now do.  

3. It is not necessary to recite the full history of the proceedings for the purposes of determining this application save to say that the defendant was charged before the Court with this charge on 8 May 2012 and pleaded guilty to the charge on 8 June 2012. 

4. On 2 August 2012, after I had delivered my decision on another interlocutory application made by the defendant: see Reynolds v McTernan [2012] ACTMC 3, the defendant foreshadowed a further application in relation to the present charge. As a consequence of a failure to comply with directions and the adjournment of the matter at the request of one of the parties, the matter was ultimately only argued before me yesterday. Whilst no written application for a stay of the proceedings had been filed by the defendant, an oral application for a stay of the proceedings was made in the terms that I have indicated above. Prior to yesterday’s hearing the defendant’s application had been for leave to withdraw his plea of guilty. However, as the basis for that application was that it was either not possible to charge him with an offence under s 32 in circumstances where s 61C applied or, alternatively, to do so would amount to an abuse of process, it appeared to me that the more appropriate application was simply one to have the proceedings stayed and the oral application that was made reflected that.

Submissions of the parties

1. The submissions of the defendant were to the effect that:

   (a) the appropriate charge in terms of fairness to the defendant was a charge under s 61C of the General Act rather than s 32(2)(a) of Driver Licensing Act;

   (b)    the decision in Environment Protection Authority v Djura [2012] NSWLEC 122 supported the proposition that a prosecuting authority should charge a less punitive offence if it was appropriate or even more appropriate to the facts alleged;

   (c) the prosecution’s decision to treat an offence under s 61C of the General Act as only applicable to interstate driver licence holders was wrong in law and an abuse of process because the effect of the interpretation was that interstate driver licence holders were treated more leniently than ACT licence holders for committing the same act; and

   (d)   “Issues of parity, consistency and fairness require the prosecution to charge appropriately.”

2. The submissions of the prosecution were, in summary:

   (a) that having regard to the statutory functions of the Director, the Director’s prosecution guidelines and the decision in Maxwell v The Queen 184 CLR 501, the decision as to which charge to lay was a matter for the Director and not a matter with which the Court would interfere;
   (b) that discretion was recognised in s 191 of the Legislation Act and routinely applied in cases commonly dealt with before the Magistrates Court, for example the charges of theft and minor theft in sections 308 and 321 of the Criminal Code and the charges of damaging property in s 116(3) of the Crimes Act and in s 403 of the Criminal Code.
   (c) the availability of a charge under either s 32 or s 61C was not restricted by the terms of the other provision and that such a conclusion was reinforced by the terms of the supplementary explanatory statement accompanying the Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2010.

3. The informant also made a somewhat tentative submission that “it is by no means clear that this court has inherent jurisdiction to prevent such an abuse [of process] in the same way that a superior court has”.  No authority was cited for that proposition.  The submission was not further developed after I pointed out the approach to that issue which I had taken in Russell v Pangallo [2012] ACTMC 4 at [23]. Having regard to the conclusion that I reached it was not necessary to further consider that issue.

Statutory provisions

1. The relevant statutory provisions are s 61C of the General Act and s 32(2) of the Driver Licensing Act. Section 61C provides:

   61C Drive while suspension notice in effect
   (1) A person commits an offence if—

   (a) the person has been served with an immediate suspension notice; and
   (b) the notice has not ceased to have effect; and
   (c) the person contravenes section 61B(4)(d) or section 61B(4)(e), whichever applies.

   Maximum penalty: 20 penalty units.

   (2) An offence against this section is a strict liability offence.

Section 61B(4), which is referred to in s 61C , provides, relevantly:

(4) The following provisions apply if a person is served with a suspension notice:

(a) if the person is the holder of a driver licence—the person’s licence is suspended;
(b) if the person is the holder of an interstate driver licence or an external driver licence—the person’s right to drive in the ACT is suspended;
...
(d) if the person is the holder of a driver licence—the person must not drive a vehicle;

(e) if the person is the holder of an interstate driver licence or an external driver licence—the person must not drive a vehicle in the ACT;

Section 61C therefore incorporates as one of its elements a contravention of the provisions in s 61B(4).

Section 32(2) of the Driver Licensing Act provides:

(2) A person whose Australian driver licence is suspended by a court in
Australia or under the law of any jurisdiction must not—

(a) drive a motor vehicle on a road or road related area during the period of suspension except in accordance with a restricted licence issued to the person; or
(b) apply for a driver licence during the period of suspension and in, or in relation to, the application omit to mention the suspension.

Maximum penalty:

(a) for a first offender—50 penalty units, imprisonment for

6 months or both; or

(b) for a repeat offender—100 penalty units, imprisonment for

1 year or both.

1. This section can apply to a person who is subject to an immediate suspension notice because s 61B(4)(a) provides in relation to a holder of an ACT driver licence that the person’s license is suspended as a consequence of the issuing of the notice. It cannot operate in relation to the holder of an interstate driver licence because the effect of the immediate suspension notice in relation to such a license is simply that the right to drive in the ACT is suspended as opposed to the licence itself being suspended. It is only where the licence itself is suspended that s 32(2) can operate.

Consideration

10. The issue of which provision to charge is an issue which commonly arises in this Court both in relation to the charges in this case as well, as the informant has pointed out, in relation to other common charges. In relation to s 61C and s 32(2), the Director will routinely withdraw charges that have been laid by an informant under s 61C and lay a fresh charge pursuant to s 32(2). In addition to subjecting a defendant to an increased fine and the risk of imprisonment, the charge under s 32 carries with it an automatic period of disqualification from holding a licence for 12 months which, although it can be increased if the Court orders, cannot be decreased below the 12 month period. As a consequence, the prosecutorial decision as to which charge to lay carries with it significant consequences which cannot be affected by the ultimate sentencing decision of the Court. It is therefore somewhat different to the exercise of prosecutorial discretion in other cases such as theft or damage property charges where a prosecutor has a decision as to which charge to lay because that prosecutorial decision does not carry with it any mandatory minimum sentence, namely the 12 month period of disqualification. However, the principles to be applied are the same.

11.  The starting point must be that where there are two different statutory offence provisions potentially available to be charged, it is open to the informant and, in the Territory, the Director of Public Prosecutions to make the decision about which charge to lay.  That is reflected in the statement in Maxwell v The Queen (1996) 184 CLR 501 at 534 (Gaudron and Gummow JJ) that:

“It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.” (footnotes omitted)

12.  As a consequence of the breadth of prosecutorial discretion and the fact that it is not susceptible to judicial review, in order to succeed in an application such as the present it is necessary for the defendant to establish as a matter of statutory construction that the offence with which he has been charged is not available in circumstances where the different charge could be brought.  That is reflected in the authorities which have dealt with similar arguments in other statutory contexts, namely Saraswati v The Queen (1991) 172 CLR 1 (dealing with New South Wales provisions penalising indecent assault, acts of indecency and carnal knowledge), Lawson v Gault (2002) 145 FCR 1 (dealing with Australian Capital Territory charges of theft and minor theft) and Hoffman v Chief of Army (2004) 137 FCR 520 (dealing with charges of assault by a defence force member under different statutory provisions). It is important to note that, as with all statutory construction arguments the fundamental task of the Court is to address the interpretation of the statutory provisions in question and, as a consequence, authorities addressing similar problems in different statutory contexts cannot be determinative of, or indeed particularly significant in determining the outcome in a particular case, although they obviously provide examples of techniques of statutory interpretation that may be involved.

1. In the present case the issue is whether or not the enactment of s 61C had the effect of limiting the scope of s 32(2) so that, in circumstances where a charge could be brought pursuant to s 61C, s 32(2) no longer extended to those circumstances.

14. It is clear that there is no express provision which has that effect. The road transport legislation, although contained in a number of different statutes, is designed to work as a package which together achieves the goals of the legislature. In particular, the Driver Licensing Act and the General Act are clearly designed to operate harmoniously together. If there was an intention to exclude s 61C cases from the scope of s 32(2), it would have been easy for the legislature to say so. The fact that the legislature hasn’t said so does not preclude such an outcome because the obligation on a court is to interpret the statutes as they have been drafted including any implications from their text and structure, rather than by reference to how they might have been drafted. However the absence of an express provision in two statutes designed to operate together, where such a provision might readily have been included, is a fact to be noted.

15.  In the absence of an express provision it is possible that either by implication or by ordinary processes of statutory construction such as through the application of the principle articulated in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 that such a conclusion could be reached. However, there is no condition or limitation in s 61C which is avoided by a charge under s 32 which would give rise to a proper basis for the application of the principle in Anthony Hordern such as existed in Saraswati.  Nor, having regard to the history of the legislation and the relationship between the two statutes is it possible to say that one provision takes priority over the other.

1. Whilst the general terms of s 61C might give rise to an implication that it was intended to cover the field in relation to driving contrary to the terms of an immediate suspension notice, the legislative history which reveals the clear statutory purpose of s 61C does not support such an implication. When considering whether the enactment of s 61C had the effect of reducing the scope of s 32(2), an interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation: Legislation Act s 139. In reaching a conclusion as to the purpose of the Act, material not forming part of the Act may be considered: Legislation Act s 141. The explanatory statement for the Bill which became the Act is a type of material that may be considered, as can the presentation speech and the Hansard report of proceedings: see s 142, table 142 items 4, 5, 6. In my view, this extrinsic material makes it clear that the purpose of the Act which inserted s 61C was to provide an additional offence to that which already existed in s 32(2) and was not intended to reduce the scope of the latter section. It makes clear that s 61C was not intended to cover the field in relation to persons driving contrary to immediate suspension notices.

17.  That is made clear by the terms of the supplementary explanatory statement circulated by the Minister for Transport which addressed government amendments which were made to the Bill (Supplementary Explanatory Statement for the Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2010).

18. It is important to understand that the Bill as first introduced contained no specific offence provision. Rather, it relied upon the effect of an immediate suspension notice being to suspend the driver licence and hence enliven the offence provision in s 32(2) of the General Act. At some point the effectiveness of the Bill in dealing with the holders of interstate driver licenses must have been raised (although it does not appear to have been in the report of the Standing Committee on Justice and Community Safety in its Scrutiny Report, Number 30 dated 15 November 2010 which reports on the Bill) and it is this issue which the government amendments addressed. The supplementary explanatory statement provided:

“OVERVIEW
...
Government Amendments 2 to 11 relate to the provisions dealing with immediate
suspension notices.

The existing offence in section 32 of the Road Transport (Driver Licensing) Act 1999 of ‘drive while suspended’ (the section 32 offence) may apply to an ACT driver whose licence is suspended by an immediate suspension notice given under proposed new section 61B of the Road Transport (General) Act 1999. Section 61B will be inserted by clause 131 of the Bill. However, ACT legislation can only suspend an interstate or external licence holder’s right to drive in the ACT. Therefore, the section 32 offence would not apply to interstate or external licence holders, because it is not possible for an ACT enactment to suspend an interstate or external driver licence. If an interstate or external licence holder drives in contravention of an immediate suspension notice, the driver is not, technically speaking, driving ‘while suspended’.

The proposed Government amendments will ensure that immediate suspension
notices can be enforced effectively in relation to these interstate and external
licence holders by suspending their right to drive in the ACT and by ensuring that

there is a specific offence of driving while a suspension notice is in effect.”

(footnotes omitted)

1. In relation to the insertion of s 61BA which became s 61C the supplementary explanatory statement provided:

   “This Government amendment inserts new section 61BA, which creates a new offence of ‘drive while suspension notice in effect.’ The offence is committed if the person has been given an immediate suspension notice that is still in effect and the person drives in contravention of the notice. The penalty for the offence is 20 penalty units. This penalty is lower than the maximum penalty for the section 32 offence of driving while suspended. That offence carries a higher maximum penalty because it can apply where a driver’s licence has been suspended by order of a court. Disobeying a court order is viewed as more serious than disregarding a notice, direction or order made by a non-judicial officer. The penalty in proposed section 61BA is the same as the penalty for the offence of ‘driving while a person’s right to drive is suspended’. That offence is found in section 44 (6) of the Road Transport(General) Act 1999, but applies only in relation to non-payment of infringement penalties. The proposed offence is a strict liability offence. It is similar to other strict liability offences in the Bill and in the road transport legislation that involve failing to comply with directions or orders given by police or authorised persons. The use of strict liability in this context is justified, given the road safety objectives that underpin the introduction of the provisions for immediate suspension orders.”

20. Further, during the course of the debate on the Bill in principle in the Legislative Assembly on 18 November 2010, the opposition indicated its support for the amendment which inserted the provision which became s 61C. Mr Hanson, indicating opposition support for the amendment, said (at 5715):

“These amendments that the government is forced to make today are to fix a gap in the bill that would have meant that the police, in pulling over the holder of an interstate licence and finding that the person had a high-range alcohol reading, would have been unable to immediately suspend that person’s license.  They would have been unable to suspend the licence, even though ACT licence holders would have had their licences suspended...

I understand that this is a technical amendment and that this is an amendment required to make the legislation work.”

21.  At the detail stage of the debate, Mr Stanhope the relevant Minister said (at 5731):

“The amendment creates a new offence of “drive whilst suspension notice in effect”. Although there is an offence under section 32 of the Road Transport (Driver Licensing) Act of “drive whilst suspended”, that applies to an ACT driver when his licence is suspended by a court or by a territory law. That offence does not apply to interstate or external drivers. Accordingly, to ensure that immediate suspension notices can be enforced against interstate and external licence holders, it is necessary to create a specific offence of driving while a suspension notice is in effect.”

22. In my view it is the terms of the supplementary explanatory statement under the heading “overview” and in the statement of Mr Stanhope at the detail stage of the debate that make clear what the legislature was attempting to achieve. It was intending to ensure that there was a particular offence provision to give effect to immediate suspension notices issued to interstate licence holders whose right to drive in the ACT had been suspended but whose licence, issued by the driver’s home jurisdiction, had not been suspended. No intention is disclosed to cut back the scope of s 32 of the Driver Licensing Act or to have s 61B cover the field in relation to driving contrary to a suspension notice.

23. The potential for confusion arises because the provision in s 61C is drafted in general terms so that it potentially applies to both ACT licence holders as well as licence holders from other jurisdictions. However that fact is, in the light of the legislative intention, not sufficient in my view to read it as providing, by implication, a limitation on s 32(2) in relation to ACT licence holders. It would, in my view, be inconsistent with the legislative command in s 139 of the Legislation Act to read s 61C as limiting the scope of s 32(2).

24. For these reasons it is open to charge the defendant in the present case pursuant to s 32(2). The existence of s 61C does not exclude from the operation of s 32(2) the situation of an ACT licence holder who drives after receiving an immediate suspension notice. Notwithstanding that this might lead to ACT licence holders and interstate licence holders being subject to different penalties for essentially the same conduct, that result is not precluded by the terms of the legislation and does not amount to an abuse of the Court’s process which ought to be prevented.

25.  Finally, in relation to the reliance by the defendant on the decision of the Land and Environment Court in Environmental Protection Authority v Djura [2012] NSWLEC 122, paragraph 59 of that decision which was referred to in the defendant’s written submissions does not in fact support the defendant’s submissions. It appeared in the context of a sentencing submission where the defendant submitted that the court should take into account the fact that the offence in question could have been dealt with by way of a penalty notice which would have imposed a relatively modest penalty. In that context Justice Biscoe said (at [59]):

“There is a line of authority that where there is another and less punitive offence which could have been charged and was as appropriate or even more appropriate to the facts alleged, this should be taken into account as a factor that affects the relative seriousness of the offence. In R v Liang (1995) 82 A Crim R 39, an appeal was lodged against what was alleged to have been a manifestly excessive sentence, based on a charge brought under Victorian legislation for fraud against a Commonwealth corporation. The Victorian legislation was based on Commonwealth legislation but had a heavier maximum penalty. It was argued on appeal that the Commonwealth legislation was more appropriate, since it was against a Commonwealth authority that the crime had taken place. In the majority, Winneke P held at 44 that:

“although it is for the prosecuting authority in its absolute discretion to determine which particular charge it will lay against an accused person, it is none the less relevant and proper for the judge on sentence to take into account as a relevant sentencing principle the fact that there was another and less punitive offence which not only could have been charged but indeed was as appropriate or even more appropriate to the facts alleged against the accused.””

26.  This passage emphasises the breadth of the prosecuting authority’s discretion.  That is consistent with the prosecution’s submission based on Maxwell in the present case and inconsistent with the defendant’s submissions.  Otherwise the passage is not relevant because it deals with questions arising at the sentencing stage as opposed to the issue on the present application, namely whether or not it is open as a matter of law to prosecute third defendant on a particular charge.  As a consequence, reliance upon this authority did not support the defendant’s application.

27.  It is for these reasons that I dismissed the defendant’s application.

I certify that the preceding twenty-seven numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Magistrate Mossop.

Associate:
Date: 12 November 2012

Counsel for the Plaintiff:  M Thomas
Solicitor for the Plaintiff:  Director of Public Prosecutions (ACT)
Counsel for the Defendant:  H Cory
Solicitor for the respondent:  Legal Aid (ACT)
Date of hearing:  6 November 2012
Date of judgment:  7 November 2012